AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ___, 1999.
REGISTRATION NO. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
TRITON ENERGY LIMITED
(Exact name of registrant as specified in its charter)
CAYMAN ISLANDS NONE
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
CALEDONIAN HOUSE
MARY STREET
P. O. BOX 1043
GEORGE TOWN
GRAND CAYMAN, CAYMAN ISLANDS
(345) 949-0500
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
------------------------
THOMAS J. MURPHY
TRITON ENERGY CORPORATION
6688 NORTH CENTRAL EXPRESSWAY, SUITE 1400
DALLAS, TEXAS 75206
(214) 691-5200
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
------------------------
Copies to:
VINCENT PAGANO, JR., ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3909
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statementfor
the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
(continued on next page)
(continued from previous page)
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
AMOUNT PROPOSED
- ------------------------------ ---------- ------------------------
TITLE OF EACH CLASS TO BE MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
- ------------------------------ ---------- ------------------------ ------------------------ ----------------
OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER UNIT OR SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
---------- ------------------------ ------------------------ ----------------
Debt securities, debt warrants,
preference shares, depositary
shares, preference warrants,
ordinary shares and
ordinary warrants (1) $250,000,000(2) 100% (3) $ 250,000,000(2)(3) $ 69,500(4)
--------------- ---------------------- -------------------- ----------------
</TABLE>
(1) The Debt Securities registered hereby include such additional amount as
may be necessary so that, if Debt Securities are issued at an original issue
discount, the aggregate initial offering price of all Debt Securities will equal
$250,000,000. The Ordinary Shares registered hereby include Preference Share
Purchase Rights (the "Rights"). The Rights are associated with and trade with
the Ordinary Shares. The value, if any, attributable to the Rights is reflected
in the market price of the Ordinary Shares. There are also being registered
hereunder an indeterminate number of Ordinary Shares as shall be issuable upon
conversion or redemption of Preference Shares or Debt Securities registered
hereby.
(2) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$250,000,000 or the equivalent thereof in one or more foreign currencies or
composite currencies, including the euro. Any securities registered hereunder
may be sold separately or as units with other securities registered hereunder.
(3) Estimated solely for the purposes of computing the registration fee.
(4) Calculated pursuant to Section 6(b).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to completion
Preliminary Prospectus dated June , 1999
Prospectus
[Triton Logo]
TRITON ENERGY LIMITED
DEBT SECURITIES
PREFERENCE SHARES
DEPOSITARY SHARES
ORDINARY SHARES
WARRANTS
------------------------
By this prospectus, we may offer from time to time up to $250,000,000 of
our debt securities, preference shares, depositary shares, ordinary shares and
warrants. When we offer securities, we will provide you with a prospectus
supplement describing the terms of the specific issue of securities, including
the offering price of the securities.
You should read this prospectus and the prospectus supplement relating to
the specific issue of securities carefully before you invest.
SEE "RISK FACTORS" BEGINNING ON PAGE ___ OF THIS PROSPECTUS FOR A
DISCUSSION OF CERTAIN FACTORS THAT YOU SHOULD CONSIDER BEFORE PURCHASING OUR
SECURITIES.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. IT IS ILLEGAL FOR ANY PERSON TO TELL
YOU OTHERWISE.
------------------------
This prospectus is dated , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About this Prospectus 3
Disclosure Regarding Forward-Looking Information 3
Triton Energy Limited 4
Enforceability of Civil Liabilities against Foreign Persons 4
Risk Factors 5
Use of Proceeds 10
Ratios of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preference Dividends 11
The Securities 11
Description of Debt Securities 12
Description of Share Capital 26
Description of Warrants 34
Plan of Distribution 34
Where You Can Find More Information About Triton 36
Incorporation of Information We File with the SEC 36
Experts 37
Legal Opinions 37
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333-__________)
(the "registration statement") that we filed with the Securities and Exchange
Commission utilizing a "shelf" registration process. Under this shelf
registration process, we may offer from time to time up to $250,000,000 of any
of the following securities, either separately or in units: debt, preference
shares, depositary shares, ordinary shares and warrants. This prospectus
provides you with a general description of the securities we may offer. Each
time we offer securities, we will provide you with a prospectus supplement that
will describe the specific amounts, prices and terms of the securities being
offered. The prospectus supplement may also add to, update or change information
contained in this prospectus.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus, the accompanying prospectus
supplement, and the documents we refer you to, as well as written and oral
statements made or incorporated by reference from time to time by Triton and its
representatives in reports, filings with the SEC, press releases, conferences or
otherwise, may be deemed to be "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933, Section 21E of the Securities
Exchange Act of 1934 and the Private Securities Litigation Reform Act of 1995.
This information is subject to the "Safe Harbor" provisions of those statutes.
Forward-looking statements include statements concerning Triton's and
management's plans, objectives, goals, strategies and future operations and
performance and the assumptions underlying such forward-looking statements. The
words "anticipates," "estimates," "expects," "believes," "intends," "plans,"
"may," "will," "should," and similar expressions used in this prospectus, the
accompanying prospectus supplement, and in the documents we refer you to are
intended to identify such forward-looking statements. These statements include
information regarding:
- drilling schedules;
- expected or planned production capacity;
- the closing of branch offices;
- future production of the Cusiana and Cupiagua fields in Colombia;
- the negotiation of a gas-sales contract, the completion of development
and the commencement of production in Malaysia-Thailand;
- our capital budget, future capital requirements and our ability to meet
our future capital needs;
- future general and administrative expense and the portion to be
capitalized;
- future interest expense and the portion to be capitalized;
- our ability to realize our deferred tax asset;
- the level of future expenditures for environmental costs;
- the outcome of regulatory and litigation matters;
- the impact of Year 2000 issues;
- the estimated fair value of derivative instruments, including the equity
swap; and
- proven oil and gas reserves and discounted future net cash flows
therefrom.
These statements are based on Triton's current expectations and involve a
number of risks and uncertainties, including those described in the context of
such forward-looking statements, as well as those presented in "Risk Factors"
below. Actual results and developments could differ materially from those
expressed in or implied by these statements. We are not obligated to update or
revise any forward-looking statements, whether as a result of new information,
future events or otherwise. For additional information with respect to these
factors, see Triton's Annual Report on Form 10-K for the year ended December 31,
1998. See "Where You Can Find More Information about Triton" and "Incorporation
of Information We File with the SEC."
TRITON ENERGY LIMITED
Triton Energy Limited ("Triton", which may be referred to as "we" or "us"
in this prospectus) is an international oil and gas exploration and production
company. Our principal properties, operations, and oil and gas reserves are
located in Colombia and Malaysia-Thailand. We are exploring for oil and gas in
these areas, as well as in southern Europe, Africa and the Middle East.
Our principal executive office is located at Caledonian House, Mary Street,
P.O. Box 1043, George Town, Grand Cayman, Cayman Islands and our telephone
number there is (345) 949-0050. You can also obtain information regarding Triton
by contacting our Investor Relations Department c/o Triton Energy, 6688 North
Central Expressway, Suite 1400, Dallas, Texas 75206, telephone number (214)
691-5200, or by visiting our web site, www.tritonenergy.com. You can also obtain
information about us from the Securities and Exchange Commission and the New
York Stock Exchange. See "Where You Can Find More Information about Triton" and
"Incorporation of Information We File with the SEC."
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS
Triton is a Cayman Islands company, certain of our officers and directors
may be residents of various jurisdictions outside the United States and our
Cayman Islands legal counsel, W.S. Walker & Company, are residents of the Cayman
Islands. All or a substantial portion of our assets and the assets of such
persons may be located outside the United States. As a result, it may be
difficult for investors to effect service of process within the United States
upon such persons or to enforce in United States courts judgments obtained
against such persons in United States courts and predicated upon the civil
liability provisions of the Securities Act of 1933. We have agreed to be served
with process with respect to actions based on offers and sales of securities
made pursuant to this prospectus and the accompanying prospectus supplement in
the United States. To bring a claim against us, you may serve Triton's Corporate
Secretary, c/o Triton Energy Corporation, 6688 North Central Expressway, Suite
1400, Dallas, Texas 75206-9926, its United States agent appointed for that
purpose.
W. S. Walker & Company, our Cayman Islands legal counsel, has advised us
that there is doubt as to whether Cayman Islands courts would enforce (a)
judgments of United States courts obtained in actions against us or such other
persons that are predicated upon the civil liability provisions of the
Securities Act of 1933 or (b) in original actions brought against us or such
other persons predicated upon the Securities Act of 1933. There is no treaty
between the United States and the Cayman Islands providing for such enforcement,
and there are grounds upon which Cayman Islands courts may not enforce judgments
of United States courts. Certain remedies available under the United States
federal securities laws would not be allowed in Cayman Islands courts as
contrary to that nation's policy.
RISK FACTORS
In deciding whether to invest in Triton securities, you should consider the
following risks. You should consider carefully these risks along with the other
information in this document and the documents to which we have referred you.
See "Where You Can Find More Information about Triton" and "Incorporation of
Information We File with the SEC" below.
DRILLING OIL AND GAS WELLS COULD INVOLVE BLOWOUTS, HURRICANES, ENVIRONMENTAL AND
OTHER OPERATING RISKS
The nature of the oil and gas business involves certain operating hazards
such as well blowouts, explosions, uncontrollable flows of oil, gas or well
fluids, pollution, earthquakes, formations with abnormal pressures, labor
disruptions, fires, releases of toxic gas and other environmental hazards and
risks. Any of these operating hazards could result in substantial losses. In
addition, we may be liable for environmental damages caused by previous owners
of property purchased by us or our predecessors. As a result, we could incur
substantial liabilities to third parties or governmental entities. The payment
of these amounts could reduce or eliminate the funds available for exploration,
development or acquisitions. In accordance with customary industry practices, we
maintain insurance against some, but not all, of such risks and losses. The
occurrence of an event that is not fully covered by insurance could have a
material adverse effect on our financial position and results of operations. In
addition, we cannot be sure that insurance will continue to be available, or
that insurance will continue to be available at premium levels that justify its
purchase.
OUR OPERATING RESULTS ARE SIGNIFICANTLY IMPACTED BY OIL PRICES
Currently, substantially all of our revenues are derived from the sale of
oil produced in Colombia. In general, we sell our oil production at prices that
are based on the market price of oil on the date of sale, although from time to
time we may sell production in advance at contractually fixed prices and we may
enter into hedging transactions. The market price for oil historically has been
volatile and has recently decreased significantly. For example, during the three
year period ended December 31, 1998, WTI oil prices fluctuated between a low
price of $10.72 per barrel and a high price of $26.62 per barrel. Further
decreases in oil and natural gas prices will adversely affect our revenues,
results of operations, and cash flows. If the industry experiences significant
prolonged future price decreases, we may be unable to generate sufficient cash
flow from operations to make planned capital expenditures.
WE MAY INCUR WRITEDOWNS OF PROPERTIES' CARRYING VALUES
We follow the full cost method of accounting for exploration and
development of oil and gas reserves. Under this method of accounting, all of our
costs related to acquisition, holding and initial exploration of licenses in
countries where we do not have any proved reserves are initially capitalized. We
then periodically make assessments of these licenses for impairment on a
country-by-country basis. Based on our evaluation of drilling results, seismic
data and other information we deem relevant, we may be required to write down
the carrying value of the oil and gas licenses in that country. A writedown
constitutes a charge to earnings that does not impact our cash flow from
operating activities. However, a writedown does impact the amount of our
shareholders' equity. For example, in the second quarter of 1998, we recorded a
$77.3 million ($72.6 million, net of tax) writedown of unevaluated oil and gas
properties. Due to the unpredictable nature of exploration drilling activities,
the amount and timing of impairment write-downs are difficult to predict.
In addition to possible writedowns that could occur periodically due to our
assessments of licenses where we do not have any proved reserves, the accounting
rules could require us to write down the carrying value of properties where we
do have proved reserves as a result of the "full cost ceiling limitation"
prescribed by the SEC. Under the full cost ceiling limitation, we will incur a
writedown in any country to the extent that the net capitalized costs of oil and
gas properties for that country, less related deferred income taxes, exceeds the
amount given by the following formula:
(1) the estimated future net revenues from the properties, discounted at 10%;
plus
(2) unevaluated costs not being amortized; plus
(3) the lower of cost or estimated fair value of unproved properties being
amortized; minus
(4) income tax effects related to differences between the financial statement
basis and tax basis of oil and gas properties.
The discounted future net revenues from the properties is determined based
on the selling price of oil or gas as of the end of the accounting period, or
when results of operations for that period are determined. For example, as a
result of a decline in oil prices in 1998, we incurred a writedown of evaluated
oil and gas properties in Colombia of $105.4 million ($68.5 million, net of tax)
and $135.6 million ($115.9 million, net of tax) in June and December, 1998,
respectively, because of the full cost ceiling limitation. No adjustments were
made to our reserves in Colombia as a result of the decline in prices. The SEC
full cost ceiling limitation was calculated using the net prices of
approximately $13 per barrel (as of June 30, 1998) and $11 per barrel (as of
December 31, 1998). An additional writedown could be required if oil prices fall
below the December 31, 1998, level at later quarter end dates.
You can find information concerning our assets at December 31, 1998,
including capitalized costs by geographic area, in note 22 of the notes to our
Consolidated Financial Statements, which are included in our Annual Report on
Form 10-K for the year ended December 31, 1998.
WE OPERATE IN FOREIGN COUNTRIES AND ARE SUBJECT TO POLITICAL, ECONOMIC AND OTHER
UNCERTAINTIES
We conduct substantially all of our exploration and production operations,
and derive substantially all of our revenues, outside the United States.
Operations in foreign countries, particularly in the oil and gas business, are
subject to political, economic and other uncertainties, including:
- the risk of expropriation, nationalization, war, revolution, border
disputes, renegotiation or modification of existing contracts, import,
export and transportation regulations and tariffs;
- taxation policies, including royalty and tax increases and retroactive
tax claims;
- exchange controls, currency fluctuations and other uncertainties arising
out of foreign government sovereignty over our international operations;
- laws and policies of the United States affecting foreign trade, taxation
and investment; and
- the possibility of having to be subject to the exclusive jurisdiction of
foreign courts in connection with legal disputes and the possible
inability to subject foreign persons to the jurisdiction of courts in the
United States.
To date, our international operations have not been materially affected by
these risks.
THERE ARE CERTAIN RISKS INVOLVED IN OPERATING IN COLOMBIA
Our Colombia operation is responsible for substantially all of our revenues
and operating cash flow. Development of reserves in the Colombia fields is
ongoing and will require additional drilling.
From time to time, guerrilla activity in Colombia has disrupted the
operation of oil and gas projects causing increased costs. The guerrilla
activity has increased over the last few years, causing delays in the
development of the Cupiagua Field. Although we and our partners, as well as the
Colombian government, have taken steps to maintain security and favorable
relations with the local population, we cannot assure you that these attempts to
reduce or prevent guerrilla activity will be successful or that guerrilla
activity will not disrupt operations in the future.
Colombia is among several nations whose progress in stemming the production
and transit of illegal drugs is subject to annual certification by the President
of the United States. In March 1999, the President of the United States
announced that Colombia would be certified. We cannot assure you that, in the
future, Colombia will receive certification or a national interest waiver. If in
the future the United States does not grant Colombia certification, or a
national interest waiver, several adverse consequences could result, including
the following:
- all bilateral aid, except anti-narcotics and humanitarian aid, would be
suspended;
- the Export-Import Bank of the United States and the Overseas Private
Investment Corporation would not approve financing for new projects in
Colombia;
- U.S. representatives at multilateral lending institutions would be
required to vote against all loan requests from Colombia (although
such votes would not constitute vetoes); and
- the President of the United States and Congress would retain the right
to apply future trade sanctions.
Each of these consequences could result in adverse economic consequences in
Colombia and could further heighten the political and economic risks associated
with our operations there.
THERE ARE CERTAIN RISKS INVOLVED IN OPERATING IN MALAYSIA-THAILAND
We have an interest in a production sharing contract covering Block A-18 in
the Malaysia-Thailand Joint Development Area. The contract gives us and our
partners the right to explore for and produce oil and gas from the area. The
area is located approximately 450 kilometers northeast of Kuala Lumpur and 750
kilometers south of Bangkok. We expect that it will take several years and the
drilling of additional wells and the installation of production facilities
before we can start producing gas from the area and receiving revenues. Also,
pipelines will be required to be connected between the area and ultimate
markets.
As of the date of this prospectus, we have not signed a definitive
agreement for the sale of our production. In April 1998, we and the other
parties to the contract executed a "heads of agreement" contemplating a
definitive gas-sales agreement for the sale of natural gas from the block. We
and the representatives of each of the other parties, both buyers and sellers,
have agreed to present an agreed form of gas-sales agreement to our boards of
directors, and to the governments of Malaysia and Thailand, for approval. We
cannot assure you that the agreement will be approved or executed, or if it is
executed when it will occur. We believe we reduced some of the risk associated
with developing our interest in this area when we sold to ARCO one-half of the
shares of our subsidiary that held our interest in the block. In connection with
the sale, ARCO agreed to pay the future exploration and development costs
attributable to ours and ARCO's collective interest in Block A-18. This
obligation of ARCO to "carry" our share of these costs is limited so that we and
ARCO will each begin paying our share of the costs once ARCO has paid $377
million, or when gas production begins from a gas field, whichever occurs first.
THERE MAY BE CERTAIN RISKS BECAUSE OF THE INFLUENCE OF HICKS MUSE
In connection with the purchase by HM4 Triton, L.P., an affiliate of Hicks,
Muse, Tate & Furst Incorporated, of 1,822,500 shares of our 8% Convertible
Preference Shares in September 1998, five Triton directors resigned, we
decreased the size of our board of directors from eleven to ten, and our board
of directors appointed four persons nominated by HM4 Triton, L.P. to fill the
vacancies. Under a shareholders agreement with HM4 Triton, L.P., for so long as
the entire board of directors consists of ten members, HM4 Triton, L.P. has the
right to designate four nominees for election to our board of directors. The
number of persons HM4 Triton, L.P. has the right to designate will vary
proportionately with any change in the total number of members of the board of
directors. HM4 Triton, L.P.'s right to designate nominees for election to our
board of directors will be reduced if HM4 Triton, L.P. reduces the number of
Triton shares it holds below certain amounts.
In the shareholders agreement, we also agreed that we would not take
certain fundamental corporate actions without the consent of HM4 Triton, L.P.
Some of the actions that would require HM4 Triton, L.P.'s consent are listed
below:
- entering into a merger or similar business combination transaction, or
effecting a reorganization, recapitalization or other transaction pursuant
to which a majority of the outstanding ordinary shares or any 8%
Convertible Preference Shares are exchanged for securities, cash or
other property;
- authorizing, creating or modifying the terms of any securities that would
rank equal to or senior to the 8% Convertible Preference Shares;
- selling assets comprising more than 50% of the market value of Triton;
- paying dividends on our ordinary shares;
- incurring certain levels of debt; and
- commencing a tender offer or exchange offer for any of our ordinary shares.
In addition to the right to designate directors and the consent rights that
HM4 Triton, L.P. has, HM4 Triton, L.P. controls approximately 37% of the total
voting power of our outstanding shares through the ownership of 8% Convertible
Preference Shares and ordinary shares. Thus, HM4 Triton, L.P. has significant
influence over the actions we might take and will be able to influence, and in
some cases determine, the outcome of matters submitted for approval of our
shareholders. The existence of HM4 Triton, L.P. as a Triton shareholder may make
it more difficult for a third party to acquire, or discourage a third party from
seeking to acquire, a majority of the outstanding ordinary shares. A third party
would be required to negotiate any such transaction with HM4 Triton, L.P. and
the interests of HM4 Triton, L.P. as a shareholder may be different from the
interests of the other Triton shareholders.
ANTI-TAKEOVER PROVISIONS
In addition to the influence of HM4 Triton, L.P. as described above, our
articles of association include provisions that may make it more difficult for a
third party to acquire, or discourage a third party from seeking to acquire, a
majority of the outstanding ordinary shares. We can issue approximately eight
million preference shares with rights and preferences to be determined by the
board of directors without any shareholder approval. Our directors are divided
into three classes and only one class is elected each year. These factors will
make it difficult for a third party to replace our entire board of directors. We
also have a shareholder rights plan which gives our shareholders the right to
purchase ordinary shares for one-half of their per share market value if a third
party acquires beneficial ownership of 15% or more of the ordinary shares
(although HM4 Triton, L.P.'s ability to acquire shares is unlimited unless its
ownership decreases below certain levels). This would result in significant
economic dilution of any third party's investment. Finally, under Cayman Islands
law, a business combination generally requires the affirmative vote of
two-thirds of the shareholders voting.
THE OIL AND GAS INDUSTRY IS HIGHLY COMPETITIVE
The exploration and production business is highly competitive. We face
strong competition from major oil companies (including government-owned
companies), independent operators and other companies for favorable oil and gas
concessions, licenses, production-sharing contracts and leases, drilling rights
and markets. Many of our competitors have substantially larger financial
resources, staffs and facilities. Additionally, the governments of certain
countries where we operate may from time to time give preferential treatment to
their nationals.
THE OUTCOME OF LITIGATION IS IMPOSSIBLE TO PREDICT AND CAN HAVE AN ADVERSE
IMPACT
We cannot predict the outcome of litigation and its impact on our
operations and financial condition. There are many factors that affect the
outcome and impact of litigation that are beyond our control, 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, we could be
held responsible for the liabilities of other parties. Moreover, circumstances
could arise under which we may elect to settle claims at amounts that exceed our
expected liability for the claims in order to avoid costly litigation. Judgments
or settlements could, therefore, exceed any reserves.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement or term
sheet, we intend to use the net proceeds we receive from the sale of the
securities offered by this prospectus and the accompanying prospectus supplement
or term sheet for general corporate purposes. General corporate purposes may
include the repayment of debt, investments in or extensions of credit to our
subsidiaries, or the financing of possible acquisitions. We may invest the net
proceeds temporarily or apply them to repay short-term debt until we are ready
to use them for their stated purpose.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS
For purposes of computing the ratios of earnings to fixed charges and
earnings to combined fixed charges and preference dividends, earnings consist of
earnings (loss) from continuing operations before income taxes, minority
interest and extraordinary items, plus fixed charges (interest charges and
preference share dividend requirements of subsidiaries, adjusted to a pretax
basis), less interest capitalized, less preference share dividend requirements
of subsidiaries adjusted to a pretax basis and less undistributed earnings of
affiliates whose debt is not guaranteed by the Company.
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preference dividends for the Company for
the periods indicated:
<TABLE>
<CAPTION>
SEVEN
THREE MONTHS MONTHS YEAR
ENDED ENDED ENDED
MARCH 31, YEAR ENDED DECEMBER 31, DEC. 31, MAY 31, MAY 31,
------------------------- ----------------------------------------------------
1999 1998 1998 1997 1996 1995 1994 1994
------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges 1.3x 4.3x (a) (a) (a) 1.1x (a) (a)
Ratio of earnings to
combined fixed
charges and
preference dividends 1.3x 4.2x (b) (b) (b) 1.0x (b) (b)
</TABLE>
(a) Earnings were inadequate to cover fixed charges for the years ended
December 31, 1998, 1997 and 1996 by $261,824,000, $8,922,000 and $6,275,000,
respectively, for the seven months ended December 31, 1994 by $30,565,000 and
for the year ended May 31, 1994 by $40,976,000. Without nonrecurring items,
earnings would have been inadequate to cover fixed charges for the three months
ended March 31, 1998 by $9,356,000, for the years ended December 31, 1998, 1997
and 1995 by $39,377,000, $15,175,000 and $9,921,000, respectively, for the seven
months ended December 31, 1994 by $29,581,000 and for the year ended May 31,
1994 by $51,415,000.
(b) Earnings were inadequate to cover combined fixed charges and preference
dividends for the years ended December 31, 1998, 1997 and 1996 by $264,885,000,
$9,322,000 and $7,260,000, respectively, for the seven months ended December 31,
1994 by $31,014,000 and for the year ended May 31, 1994 by $40,976,000. Without
nonrecurring items, earnings would have been inadequate to cover combined fixed
charges and preference dividends for the three months ended March 31, 1998 by
$9,543,000, for the years ended December 31, 1998, 1997 and 1995 by $42,438,000,
$15,575,000 and $10,723,000, respectively, for the seven months ended December
31, 1994 by $30,030,000 and for the year ended May 31, 1994 by $51,415,000.
THE SECURITIES
We intend to sell our securities from time to time. These securities may
include the following, in each case, as specified by us at the time of offering:
(1) debt securities, comprising senior debt securities and subordinated debt
securities, each of which may be convertible into common stock or preferred
stock, (2) preference shares, (3) depositary shares representing preference
shares, (4) ordinary shares, and (5) warrants to purchase debt securities,
preference shares or ordinary shares.
We will offer the securities to the public on terms determined by market
conditions at the time of sale and set forth in a prospectus supplement or term
sheet relating to the specific issue of securities.
We will offer the securities described in this prospectus either separately
or together in one or more series of up to $250,000,000 aggregate public
offering price or its equivalent in foreign currencies or units of two or more
currencies, based on the applicable exchange rate at the time of the offering,
as shall be designated by us at the time of the offering.
DESCRIPTION OF DEBT SECURITIES
GENERAL
We may offer our unsecured general obligations, which may be senior (the
"Senior Securities"), senior subordinated (the "Senior Subordinated
Securities") or subordinated (the "Subordinated Securities"). The Senior
Securities, the Senior Subordinated Securities and the Subordinated Securities
are together referred to as the "Debt Securities".
The Senior Securities will be issued under an indenture between us and
, as trustee. The Senior Subordinated Securities will be issued under an
indenture between us
and , as trustee. The Subordinated Securities will be issued
under an indenture between us and , as trustee. The indentures
permit us to appoint a different trustee for each series of Debt Securities.
We have described below certain general terms that may apply to the Debt
Securities. We will describe the particular terms of any Debt Securities we
offer to you in the prospectus supplement relating to the specific series of
Debt Securities being offered.
The Indentures are substantially identical, except for provisions relating
to subordination. The following summary of certain provisions of the indentures
with respect to the Senior Securities, the Senior Subordinated Securities and
the Subordinated Securities is not complete. You should refer to the indentures,
copies of which are exhibits to the registration statement of which this
prospectus is a part. Section references below are to the sections in the
applicable indenture.
Each indenture provides that we may issue Debt Securities up to the
principal amount we authorize from time to time. The Senior Securities will be
unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. The Senior Subordinated Securities will be subordinate and
junior in right of payment to all Senior Indebtedness (as defined below under
"Provisions Applicable only to Senior Subordinated Securities and Subordinated
Securities -- Subordination"), but will be senior to any Indebtedness that is
neither Senior Indebtedness nor Senior Subordinated Indebtedness. The
Subordinated Securities will be unsecured and will be subordinated and junior to
all Senior Indebtedness.
We may issue the Debt Securities in one or more separate series of Senior
Securities, Senior Subordinated Securities and/or Subordinated Securities. We
will specify in the prospectus supplement relating to a particular series of
Debt Securities being offered the particular amounts, prices and terms of those
Debt Securities. These terms may include:
- the title and type of the Debt Securities;
- any limit on the aggregate principal amount or aggregate initial offering
price of the Debt Securities;
- the purchase price of the Debt Securities;
- the dates on which the principal of the Debt Securities will be payable and
the amount payable upon acceleration;
- the interest rates of the Debt Securities, including the interest rates, if
any, applicable to overdue payments, or the method for determining
interest rates, the dates from which interest will accrue, and the interest
payment dates for the Debt Securities;
- any provision relating to the issuance of the Debt Securities at an
original issue discount;
- the places where and the manner in which payments may be made on the Debt
Securities and the places where you may present the Debt Securities
for transfer;
- any mandatory or optional redemption provisions applicable to the Debt
Securities;
- any sinking fund or similar provisions applicable to the Debt Securities;
- the authorized denominations of the Debt Securities (if other than $1,000
and integral multiples of $1,000);
- if denominated in a currency other than U.S. dollars, the currency or
currencies, including the euro or other composite currencies, in which
payments on the Debt Securities will be payable (which currencies may be
different for principal, premium and interest payments);
- any conversion or exchange provisions applicable to the Debt Securities;
- the name of the trustee if different from the trustees named above;
- any deleted, modified or additional events of default or remedies or
additional covenants applicable to the Debt Securities (if not described in
this prospectus); and
- any other specific terms of the Debt Securities.
Debt Securities may bear interest at a fixed or a floating rate. In
addition, we may issue some of the Debt Securities as original issue discount
Debt Securities. Original issue discount Debt Securities bear no interest or
bear interest at below-market rates and will be sold at a discount below their
stated principal amount. The applicable prospectus supplement will also contain
any special tax, accounting or other information relating to original issue
discount Debt Securities. If we offer other kinds of Debt Securities, including
Debt Securities linked to an index or payable in currencies other than U.S.
dollars, the prospectus supplement relating to those Debt Securities will also
contain any special tax, accounting or other information relating to those Debt
Securities.
In addition, when we determine whether holders of the requisite aggregate
principal amount of outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver under the
indentures, we will deem as outstanding for this purpose the principal amounts
of the relevant original issue discount Debt Securities that are due and payable
as of the date of determination upon acceleration.
We will issue the Debt Securities only in fully registered form and in
denominations of $1,000 and any integral multiple thereof (Section 2.7). The
indentures permit us to issue Debt Securities of a series in definitive,
certificated form or in permanent global form. You will not be required to pay a
service charge for any transfer or exchange of Debt Securities, but we may
require the relevant holder to pay any taxes or other governmental charges
(Section 2.8).
Unless otherwise specified in the applicable prospectus supplement, we will
pay principal of (and premium, if any) and interest, if any, on the Debt
Securities at the corporate trust office of the trustee in New York City. You
may also make transfers or exchanges of Debt Securities at that location. We
also have the right to pay interest on any Debt Securities by check mailed to
the registered holders of the Debt Securities at their registered addresses. In
connection with any payment on a Debt Security, we may require the holder to
certify information to the Trustee. In the absence of that certification, we may
rely on any legal presumption to enable us to determine our responsibilities, if
any, to deduct or withhold taxes, assessments or governmental charges from the
payment.
Unless otherwise specified in the applicable prospectus supplement, none of
the indentures limits our ability to pay dividends or acquire our shares. In
addition, unless otherwise specified in the applicable prospectus supplement,
none of the indentures limits the amount of Debt Securities that may be issued
thereunder nor do they provide you with any special protection if we are
involved in a highly leveraged transaction, recapitalization or restructuring.
We may issue Debt Securities upon the exercise of Warrants issued with
other Debt Securities or upon exchange or conversion of exchangeable or
convertible Debt Securities. The applicable prospectus supplement will describe
the specific terms of any of those Warrants or exchangeable or convertible
securities. It will also describe the specific terms of the Debt Securities
issuable upon the exercise, exchange or conversion of those securities. See
"Description of Warrants" below.
Events of Default. Unless otherwise defined in the applicable prospectus
supplement, an event of default is defined in each indenture with respect to any
series of Debt Securities as any one of the following events:
(1) default in the payment of principal of (or premium, if any, on) any Debt
Security of that series when due;
(2) default in the payment of interest on any Debt Security of that series and
the default continues for 30 days;
(3) default in the payment or satisfaction of any sinking fund payment or
other purchase obligation with respect to that series when due;
(4) we fail to perform any of the other covenants in the indenture
applicable to that series for 90 days after proper notice;
(5)(A) we fail to pay indebtedness for money borrowed at the later of final
maturity or the expiration of any applicable grace period or (B) the maturity of
indebtedness for money borrowed by us is accelerated, if in the case of either
(A) or (B) the total principal amount of the indebtedness exceeds $20,000,000
and if we do not obtain the rescission or annulment of the default or
acceleration within 20 days after due notice;
(6) certain events of bankruptcy, insolvency or reorganization of Triton; and
(7) any other event of default specified with respect to Debt Securities of that
series (Section 5.1).
If any event of default with respect to Debt Securities of any series
occurs and is continuing, either the trustee or holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
original issue discount Debt Securities, a specified portion of the principal
amount) of all Debt Securities of that series to be due and payable immediately.
No such declaration is required upon certain events of bankruptcy. Subject to
certain conditions, the holders of a majority in aggregate principal amount of
the outstanding Debt Securities of that series may annul the declaration and
waive past defaults (except uncured payment defaults and certain other specified
defaults) (Section 5.1).
We will describe in the applicable prospectus supplement any particular
provisions relating to the acceleration of the maturity of a portion of the
principal amount of original issue discount Debt Securities upon an event of
default.
Each of the indentures provides that no holder of any series of Debt
Securities may sue us or otherwise bring an action against us to enforce the
indenture, unless (i) the holder had previously notified the trustee of the
default, (ii) the holders of at least 25% in aggregate principal amount of that
series of Debt Securities then outstanding have requested the Trustee to sue us
or otherwise bring an action against us to enforce the indenture and have
offered to indemnify the trustee and (iii) the trustee for 60 days after its
receipt of the notice, request and offer of indemnity shall have neglected or
refused to institute the suit or proceeding. Subject to the subordination
provisions applicable to the Senior Subordinated Debt Securities and the
Subordinated Debt Securities, the right of a holder of any Debt Security to
receive payment of the principal of, premium, if any, or interest, if any, on
the Debt Security, on or after the due dates, or to institute a suit for the
enforcement of payment can not be impaired or affected without the holder's
consent (Section 5.4).
The indentures provide that the holders of a majority in aggregate
principal amount of any series of Debt Securities then outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the trustee or exercising any of the trustee's powers with respect to that
series. The trustee will not be required to follow such directions if the
trustee determines that the action or proceeding is unlawful or would involve
the trustee in personal liability (Section 5.7).
We are required under each indenture to file annually with the trustee a
certificate of no default, or specifying any default that exists (Section 4.3).
Defeasance and Covenant Defeasance. Each of the indentures contains a
provision that permits us to elect (1) defeasance, which would discharge us from
all of our obligations (subject to limited exceptions) with respect to any Debt
Securities of that series then outstanding, and/or (2) covenant defeasance,
which would release us from our obligations under certain covenants and from the
consequences of an event of default resulting from a breach of those covenants
or a cross-default (Article Ten). To make either of the above elections, we must
deposit in trust with the trustee money and/or U.S. Government Obligations (as
defined below) which through the payment of principal and interest in accordance
with their terms will provide sufficient money, without reinvestment, to repay
in full those Debt Securities. As used in the indentures, U.S. Government
Obligations are (A) direct obligations of the United States or of an agency or
instrumentality of the United States, in either case that is or is guaranteed as
a full faith and credit obligation of the United States and that is not
redeemable by the issuer and (B) certain depository receipts with respect to an
obligation referred to in clause (A).
As a condition to defeasance or covenant defeasance, we must deliver to the
trustee an opinion of counsel that the holders of the Debt Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
the defeasance or covenant defeasance and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if defeasance or covenant defeasance had not occurred. That opinion, in
the case of defeasance, but not covenant defeasance, must refer to and be based
upon a ruling issued to us by the Internal Revenue Service or published as a
revenue ruling or upon a change in applicable Federal income tax law (Section
10.1).
If we exercise our covenant defeasance option with respect to a particular
series of Debt Securities, then even if there were a default under the related
covenant, payment of those Debt Securities could not be accelerated. We may
exercise our defeasance option with respect to a particular series of Debt
Securities even if we previously had exercised our covenant defeasance option.
If we exercise our defeasance option, payment of those Debt Securities may not
be accelerated because of any event of default. If we exercise our covenant
defeasance option and an acceleration were to occur, the realizable value at the
acceleration date of the money and U.S. Government Obligations in the defeasance
trust could be less than the principal and interest then due on those Debt
Securities. This is because the required deposit of money and/or U.S. Government
Obligations in the defeasance trust is based upon scheduled cash flows rather
than market value, which will vary depending upon interest rates and other
factors.
Modification of the Indentures. We and the applicable trustee for any
series of Debt Securities may modify the applicable indenture or any
supplemental indenture for that series with the consent of the holders of not
less than a majority in principal amount of the series of outstanding Debt
Securities affected by the modification. However, without the consent of each
affected holder, no such modification may:
- extend the stated maturity of any Debt Security;
- reduce the principal amount of (or premium, if any, on) any Debt Security;
- reduce the rate or extend the time of payment of interest on any Debt
Security;
- change the currency or currencies in which any Debt Security is payable;
- reduce the percentage of holders of outstanding Debt Securities of any
series required to consent to any modification, amendment or waiver under
the indenture;
- reduce or alter the computation method of any amount payable on redemption,
repayment or purchase by us;
- reduce the principal of any original issue discount Debt Security payable
upon acceleration or provable in bankruptcy;
- impair or affect the holders' right to institute suit for the
enforcement of any payment, or if applicable, adversely affect any right
any holder may have for prepayment; or
- change the provisions in the indenture that relate to its modification or
amendment (Section 8.2).
We and the applicable trustee may enter into supplemental indentures
without the consent of the holders of the Debt Securities to, among others:
- evidence the assumption by a successor entity of our obligations under the
applicable indenture;
- add covenants or new events of default for the holders' protection;
- secure the Debt Securities; and
- modify existing covenants and events of default solely with respect to, or
add new covenants and events of default that only apply to, Debt Securities
that are not yet issued and outstanding on the date of the supplemental
indenture (Section 8.1).
Consolidation, Merger and Sale of Assets. Unless otherwise specified in the
applicable prospectus supplement, we may, without the consent of the holders of
any Debt Securities, consolidate with or merge into any other person or
transfer, exchange or dispose of all or substantially all of our assets to
another person, provided that:
(1) the successor is a corporation or partnership organized under U.S. or Cayman
Islands law;
(2) the successor person, if not Triton, assumes our obligations on the Debt
Securities and under the indentures;
(3) after giving effect to the transaction, 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; and
(4) certain other conditions are met (Section 9.1).
Additional Amounts. We will make all payments on the Debt Securities
without deduction or withholding for withholding taxes, levies or other charges
imposed by the Cayman Islands. If, in the future, the Cayman Islands imposes any
requirement for deducting or withholding any such taxes, levies or other
charges, we will add to any payments of principal, premium (if any), and
interest (if any), an amount that will result in the net amounts paid to you or
the trustee, as the case may be, being equal to the amounts of principal,
premium (if any), and interest (if any), to which you are entitled under the
terms of the Debt Securities and the applicable indenture ("Additional
Amounts").
We will not be required to pay Additional Amounts if:
- the tax, levy, or other charge is imposed because you (or a fiduciary,
settlor, beneficiary of, member or shareholder of, yours, if applicable)
are a domiciliary, national or resident of, or engage in business or
maintain a permanent establishment or being physically present in, the
Cayman Islands or otherwise having some connection with the Cayman
Islands other than the holding or owning the Debt Securities or
- you present your Debt Securities for payment (if presentation is
required) more than 30 days after the date such payment was due or was
provided for, whichever is later.
Also, we will not be required to pay Additional Amounts with respect to the
following:
- estate, inheritance, gift, sales, transfer, excise, personal property or
similar taxes, levies or charges;
- taxes, levies or charges that are not payable by withholding from our
payment of principal, premium (if any), and interest (if any); or
- taxes, levies or charges that are imposed due to a failure by you to comply
with any reporting requirements, if any, concerning your nationality,
residence, identity or connections with the relevant tax authority.
In addition, if you are a fiduciary or a partnership, we will not pay you
Additional Amounts to the extent that we would not be required to pay any
Additional Amounts to your beneficiary or settlor, or partner or other
beneficial owner, if they were the holder of the Debt Securities.
PROVISIONS APPLICABLE ONLY TO SENIOR SECURITIES
The Senior Securities will be direct, unsecured general obligations of
Triton, will constitute Senior Indebtedness of Triton, and will have the same
rank as our other Senior Indebtedness. For a definition of "Senior Indebtedness"
see "--Provisions Applicable only to Senior Subordinated Securities and
Subordinated Securities -- Subordination" below.
Limitations on Liens. As long as any Senior Securities are outstanding, the
senior indenture provides that we may not, and may not permit any Restricted
Subsidiary to, pledge, mortgage or grant a security interest in, or permit any
mortgage, pledge, security interest or other lien upon, any property or assets
owned by us or any Restricted Subsidiary to secure any debt, unless we also
provide any outstanding Senior Securities with an equal and ratable security
interest (Section 3.6 of the senior indenture).
This limitation will not apply to or restrict the following:
- any mortgage, pledge, security interest or other lien on any asset that
is in existence at the time we issue the Senior Securities;
- any mortgage, pledge, security interest or other lien on any asset created
at the time we or any Restricted Subsidiary acquires the asset, or within
one year after we or any Restricted Subsidiary acquires the asset, in
order to finance all or a portion of the purchase price for the
asset;
- any mortgage, pledge, security interest or other lien on any asset that is
in existence at the time we or any Restricted Subsidiary acquires the
asset;
- any mortgage, pledge, security interest or other lien on any asset of an
entity that is in existence at the time the entity becomes a Restricted
Subsidiary after the date of the senior indenture;
- any mortgage, pledge, security interest or other lien on any asset arising
in connection with a transfer by us or any Restricted Subsidiary of a
production payment;
- any mortgage, pledge, security interest or other lien on property that
secures (i) the cost of exploration, drilling or development of the
property, (ii) the cost of acquiring, constructing, or improving the
property, or (iii) indebtedness incurred by us or any Restricted
Subsidiary to provide funds for any of these activities;
- any mortgage, pledge, security interest or other lien with respect to crude
oil, natural gas or other petroleum hydrocarbons in place for a period of
time until the transferee will realize a specified amount of money or of
such crude oil, natural gas or other petroleum hydrocarbons;
- any mortgage, pledge, security interest or other lien required by any
contract or statute in order to permit us or any Restricted Subsidiary
to perform a contract made with or at the request of a government or
governmental agency, or to secure partial, progress, advance or other
payments by such government or governmental agency to us or any Restricted
Subsidiary pursuant to the provisions of any contract or statute;
- any mortgage, pledge, security interest or other lien in our favor or in
favor of any Restricted Subsidiary;
- any mortgage, pledge, security interest or other lien created or assumed by
us or any Restricted Subsidiary in connection with the issuance of debt
securities the interest on which is excludable from the taxable gross
income of the holder of such security for the purpose of financing, in
whole or in part, the acquisition or construction of property or assets
to be used by us or a subsidiary;
- any extension, renewal or refunding of any mortgage, pledge, security
interest or other lien described in the foregoing on substantially the
same property or assets;
- the mortgage, pledge, security interest or other lien that would arise if
we were to deposit funds or securities to defease any of our or
our subsidiaries' indebtedness;
- any mortgage, pledge, security interest or other lien securing indebtedness
under hedging obligations or contracts otherwise permitted under the senior
indenture; or
- any mortgage, pledge, security interest or other lien securing any
indebtedness in an amount which, together with all other secured
indebtedness that is not otherwise permitted by the foregoing, does not
at the time of the incurrence of the secured indebtedness exceed 20% of
Consolidated Net Tangible Assets.
In addition, this limitation will not apply to or restrict certain
mortgages, pledges, security interests or other liens that arise in the ordinary
course of the international oil and gas business, such as the following:
- taxes, assessments, governmental charges or levies on our property or any
Restricted Subsidiary's property if they are being contested in good faith
or are not delinquent and can be paid without penalty;
- carriers', warehousemen's, landlords' and mechanics' liens and other
similar liens that secure obligations that are being contested in good
faith or are less than 60 days past due;
- pledges or deposits under worker's compensation laws, unemployment
insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
- utility easements, building restrictions or other encumbrances or charges
against real property that do not materially affect its marketability or
interfere with our usage of it;
- those that arise under operating or similar agreements for obligations that
are not yet due or are being contested in good faith;
- reserves for 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 in such documents;
- those that arise pursuant to agreements that 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;
- those imposed on personal property (excluding any Restricted Subsidiary's
capital stock) to secure our or any Restricted Subsidiary's indebtedness
(other than indebtedness that will mature or is renewable on a date more
than one year after original incurrence); and
- those imposed by law or order as a result of any court or regulatory body
proceeding that are being contested in good faith or judgement liens or
other court-ordered awards or settlements as to which we have not
exhausted our appellate rights.
Certain Definitions. Unless otherwise specified in the applicable
prospectus supplement, the following definitions are applicable to the
discussion of the senior indenture (Article One).
"Consolidated Net Tangible Assets" means the total assets included on our
most recent consolidated balance sheet (consolidating only Restricted
Subsidiaries), less applicable reserves and other properly deductible items and
after deducting (a) all current liabilities and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other similar
intangibles, all in accordance with generally accepted accounting principles
consistently applied.
A "Restricted Subsidiary" means
- any subsidiary of Triton that owns or leases any property or interest that
we consider to be capable of producing oil or gas or minerals in
commercial quantities,
- any subsidiary of Triton that owns or leases any processing or
manufacturing plant or pipeline that is material to our business,
and
- any other subsidiary our Board of Directors designates as a Restricted
Subsidiary.
PROVISIONS APPLICABLE ONLY TO SENIOR SUBORDINATED SECURITIES AND SUBORDINATED
SECURITIES
The Senior Subordinated Securities and Subordinated Securities will be
direct, unsecured general obligations of Triton. The Senior Subordinated
Securities will be subordinate and junior in right of payment, to the extent set
forth in the senior subordinated indenture, to all Senior Indebtedness, but will
be senior to any indebtedness that is neither Senior Indebtedness nor Senior
Subordinated Indebtedness. The Subordinated Securities will be subordinate and
junior in right of payment, to the extent set forth in the subordinated
indenture, to all Senior Indebtedness. The senior subordinated indenture and
subordinated indenture do not limit the amount of indebtedness (including Senior
Indebtedness and Senior Subordinated Indebtedness) we may incur. As of
______________, 1999, Senior Indebtedness totaled approximately $___ million.
Subordination. The senior subordinated indenture and subordinated indenture
define "Senior Indebtedness" to mean, as to any series of Debt Securities
constituting Senior Subordinated Securities or Subordinated Securities, the
principal of (and premium, if any) and interest on all indebtedness for money
borrowed by us, whether outstanding on the date each such indenture became
effective or created, assumed or incurred after that date (including all
indebtedness for money borrowed by another person that we guarantee), except
indebtedness that is stated to be inferior to or to have the same rank as that
series of Debt Securities. Senior Indebtedness does not include our other
indebtedness that is expressly stated to have the same rank as the Senior
Subordinated Securities or Subordinated Securities or to rank junior to the
Senior Subordinated Securities or Subordinated Securities. Senior Indebtedness
does not include any indebtedness of Triton to any of our wholly-owned
subsidiaries, interest accruing after certain events of bankruptcy or insolvency
unless the interest is an allowed claim under federal or state bankruptcy laws
or trade payables.
Under the senior subordinated indenture and the subordinated indenture, we
may not make any payment on the Senior Subordinated Securities or Subordinated
Securities in the event:
- we have failed to make full payment of all amounts of principal (and
premium, if any) and interest, if any, due on all Senior Indebtedness; or
- there shall exist and be continuing any other event of default on any
Senior Indebtedness and the maturity of such Senior Indebtedness has
been accelerated (Sections 13.1 and 13.4 of the senior subordinated debt
indenture and Sections 13.1 and 13.4 of the subordinated debt
indenture).
If any other default under Senior Indebtedness occurs that would permit its
acceleration, or if any other default under Senior Indebtedness occurs and any
applicable grace period expires, then the holders of Senior Indebtedness may
prohibit any payment on the Senior Subordinated Securities or Subordinated
Securities for up to 179 days.
Upon our dissolution, winding-up, liquidation or reorganization, we must
pay to the holders of Senior Indebtedness the full amounts of principal of (and
premium, if any) and interest, if any, on that Senior Indebtedness before any
payment or distribution is made on the Senior Subordinated Securities or
Subordinated Securities (Section 13.1 of the senior subordinated debt indenture
and Section 13.1 of the subordinated debt indenture).
PERMANENT GLOBAL DEBT SECURITIES
We may issue certain series of the Debt Securities as permanent global Debt
Securities and deposit them with a depositary with respect to that series
(Section 2.8). Unless otherwise indicated in the applicable prospectus
supplement, the following is a summary of the depository arrangements applicable
to Debt Securities issued in permanent global form and for which The Depositary
Trust Company ("DTC") acts as depositary (the "global Debt Securities").
Each global Debt Security will be deposited with, or on behalf of, DTC, as
depositary, or its nominee and registered in the name of a nominee of DTC.
Except under the limited circumstances described below, global Debt Securities
are not exchangeable for definitive, certificated Debt Securities.
Only institutions that have accounts with DTC or its nominee
("participants") or persons that may hold interests through participants may own
beneficial interests in a global Debt Security. DTC will maintain records
reflecting ownership of beneficial interests by participants in the global Debt
Securities and transfers of those interests. Participants will maintain records
evidencing ownership of beneficial interests in the global Debt Securities by
persons that hold through those participants and transfers of those interests
within those participants. DTC has no knowledge of the actual beneficial owners
of the Debt Securities. DTC will not issue any written confirmation of a
purchase of beneficial interests in a global Debt Security, but we do expect
that the relevant participant will issue written confirmations providing details
of the transaction, as well as periodic statements of a purchaser's holdings.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of those securities in definitive, certificated form.
Those laws may impair an owner's ability to transfer beneficial interests in a
global Debt Security.
DTC has advised us that upon the issuance of a global Debt Security and the
deposit of that global Debt Security with DTC, DTC will immediately credit, on
its book-entry registration and transfer system, the respective principal
amounts represented by that global Debt Security to the accounts of its
participants.
We will make payment of principal of, and interest on, Debt Securities
represented by a global Debt Security to DTC or its nominee, as the case may be,
as the registered owner and holder of the global Debt Security representing
those Debt Securities. DTC has advised us that upon receipt of any payment of
principal of, or interest on, a global Debt Security, DTC will immediately
credit accounts of participants with payments in amounts proportionate to their
respective beneficial interests in the principal amount of that global Debt
Security, as shown in the records of DTC. Standing instructions and customary
practices will govern payments by participants to owners of beneficial interests
in a global Debt Security held through those participants, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name". Those payments will be the sole responsibility of those
participants, subject to any statutory or regulatory requirements that may be in
effect from time to time.
Neither we, the trustees nor any of our respective agents will be
responsible for any aspect of the records of DTC, any nominee or any participant
relating to, or payments made on account of, beneficial interests in a global
Debt Security or for maintaining, supervising or reviewing any of the records of
DTC, any nominee or any participant relating to those beneficial interests.
A global Debt Security is exchangeable for definitive Debt Securities
registered in the name of a person other than DTC or its nominee only if:
(a) DTC notifies us that it is unwilling or unable to continue as
depositary for that global Debt Security or DTC ceases to be registered under
the Securities Exchange Act of 1934;
(b) we determine in our discretion that the global Debt Security will be
exchangeable for definitive Debt Securities in registered form; or
(c) there shall have occurred and be continuing an event of default or an
event which, with notice or the lapse of time or both, would constitute an event
of default under the Debt Securities.
Any global Debt Security that is exchangeable as described in the preceding
sentence will be exchangeable in whole for definitive, certificated Debt
Securities in registered form, of like tenor and of an equal aggregate principal
amount as the global Debt Security, in denominations specified in the applicable
prospectus supplement (if other than $1,000 and integral multiples of $1,000).
The registrar will register the definitive Debt Securities in the name or names
instructed by DTC. We expect that these instructions may be based upon
directions received by DTC from its participants with respect to ownership of
beneficial interests in the global Debt Security. We will make payment of any
principal and interest on the definitive Debt Securities and will register
transfers and exchanges of those definitive Debt Securities at the corporate
trust office of the Trustee in the Borough of Manhattan, The City of New York.
However, we may elect to pay interest by check mailed to the address of the
person entitled to that interest payment as of the record date, as shown on the
register for the Debt Securities.
Except as provided above, an owner of a beneficial interest in a global
Debt Security will not be entitled to receive physical delivery of Debt
Securities in definitive form and will not be considered the holder of Debt
Securities for any purpose under the applicable indenture. No global Debt
Security will be exchangeable except for another global Debt Security of like
denomination and tenor to be registered in the name of DTC or its nominee.
Accordingly, the owner must rely on the procedures of DTC and the participant
through which the owner owns his interest to exercise any rights of a holder
under the global Debt Security or the applicable indenture.
We understand that, under existing industry practices, in the event that we
request any action of holders, or an owner of a beneficial interest in a global
Debt Security desires to take any action that a holder is entitled to take under
the Debt Securities or the indentures, DTC would authorize the participants
holding the relevant beneficial interests to take that action, and those
participants would authorize beneficial owners owning through those participants
to take that action or would otherwise act upon the instructions of beneficial
owners owning through them.
DTC has advised us that DTC is a limited purpose trust company organized
under the laws of the State of New York, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered under the Securities Exchange Act of
1934. DTC was created to hold securities of its participants and to facilitate
the clearance and settlement of securities transactions among its participants
in those securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. DTC is
owned by a number of its participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. (the "NASD"). Access to DTC's book-entry system is also available
to others, such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a participant, either directly
or indirectly. The rules applicable to DTC and its participants are on file with
the SEC.
DTC's management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on and after January 1, 2000, may encounter "Year 2000"
problems. The Depositary has informed its participants and other members of the
financial community that it has developed and is implementing a program so that
its Systems, as they relate to the timely payment of distributions (including
principal and income payments) to securityholders, book-entry deliveries, and
settlement of trades within DTC ("DTC Services"), continue to function
appropriately. This program includes a technical assessment and a remediation
plan, each of which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform its services properly is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunications and electrical utility service providers,
among others. DTC has informed the financial community that it is contacting,
and will continue to contact, third party vendors from whom DTC acquires
services to impress upon them the importance of such services being Year 2000
compliant, and to determine the extent of their efforts for Year 2000
remediation and, as appropriate, testing of their services. In addition, DTC is
in the process of developing such contingency plans as it deems appropriate.
We believe that the sources from which the information in this section
concerning DTC and DTC's system has been obtained are reliable, but we take no
responsibility for the accuracy of the information.
INFORMATION CONCERNING THE TRUSTEES
We may maintain deposits and conduct other banking transactions with the
trustee in the ordinary course of business and the trustee may serve as trustee
with respect to other series of debt securities.
If a bank or trust company other than ________________ or ________________
is to act as trustee for a series of Debt Securities, information concerning
such other trustee will be set forth in the applicable prospectus supplement.
DESCRIPTION OF SHARE CAPITAL
PREFERENCE SHARES
We are authorized by our memorandum and articles of association to issue up
to 20,000,000 preference shares, $.01 par value per share, in one or more
classes or series without shareholder action. If we issue a class or series of
preference shares, we can determine the number of shares of each class or
series, and the rights, preferences and limitations of each class or series, at
the time we issue the shares. We may also amend our memorandum and articles of
association to increase the number of authorized preference shares in a manner
permitted by our memorandum and articles of association and Cayman Islands law.
As of the date of this prospectus, we have two series of preference shares
outstanding, which are described below under "Outstanding Preference Shares".
We will describe the particular terms of any series of preference shares
being offered in the prospectus supplement relating to that series of preference
shares. Those terms may include:
- the number of shares being offered;
- the title and liquidation preference per share;
- the purchase price;
- the dividend rate (or method for determining that rate);
- the dates on which dividends will be paid;
- whether dividends will be cumulative and, if cumulative, the dates from
which dividends will begin to accumulate;
- any applicable redemption, retirement or sinking fund provisions;
- any applicable voting rights;
- any applicable provisions for the conversion of the shares offered
into, or for the exchange of such shares for, shares of any other class
or series of share capital of Triton or another corporation or any
series of any other class or classes, or of any other series of
the same class;
- whether we have elected to offer depositary shares with respect to that
series of preference shares; and
- any additional dividend, liquidation, redemption, retirement, sinking fund
and other rights, qualifications, limitations, and restrictions applicable to
that series of preference shares.
You should refer to the resolutions relating to the series of the
preference shares being offered for the complete terms of those preference
shares. We will file those resolutions with the SEC promptly after the offering
of the preference shares.
OUTSTANDING PREFERENCE SHARES
As of the date of this prospectus, we have two series of preference shares
outstanding, the 8% Convertible Preference Shares and the 5% Convertible
Preference Shares. The following summary of certain provisions of the
resolutions establishing the terms of the outstanding preference shares is not
complete. You should refer to the resolutions, copies of which are exhibits to
the registration statement.
8% Convertible Preference Shares
Dividends. We are required to pay dividends on the 8% Convertible
---------
Preference Shares semi-annually at the rate of 8% per year of the stated value
per share (initially $70) for each semi-annual dividend period ending on June 30
and December 31 of each year. The first dividend period is the period ending on
June 30, 1999. Dividends on the 8% Convertible Preference Shares are cumulative.
We are required to pay dividends on the 8% Convertible Preference Shares no
later than five days after the end of a dividend period. We can choose to pay
dividends in cash or in additional 8% Convertible Preference Shares. If
dividends are not paid in cash or in additional shares on a scheduled dividend
payment date, all accumulated but unpaid dividends will be added to the stated
value of the 8% Convertible Preference Shares outstanding, and future dividends
will accumulate and be paid based on the stated value, as adjusted.
The 8% Convertible Preference Shares have priority as to dividends over
ordinary shares and any other Triton shares ranking junior as to dividends to
the 8% Convertible Preference Shares. We may not pay a dividend or other
distribution on any ordinary shares or other shares ranking junior to the 8%
Convertible Preference Shares unless all accumulated and unpaid dividends on the
8% Convertible Preference Shares have been paid. If any accrued dividends are
not paid in full on the 8% Convertible Preference Shares or on any shares
ranking equal to the 8% Convertible Preference Shares as to dividends, we must
pay the dividends on the 8% Convertible Preference Shares and such
equally-ranked shares so that the amount of dividends declared per share on the
8% Convertible Preference Shares and such equally-ranked shares will bear the
same ratio that accrued and unpaid dividends per share on the 8% Convertible
Preference Shares and such equally-ranked shares bear to each other.
So long as the 8% Convertible Preference Shares are outstanding, we may not
redeem or purchase any ordinary shares or any Triton shares ranking junior as to
dividends to the 8% Convertible Preference Shares or any other Triton shares
ranking junior to the 8% Convertible Preference Shares as to liquidation rights
unless (i) full dividends on all outstanding 8% Convertible Preference Shares
and any other shares ranking equal as to dividends to the 8% Convertible
Preference Shares have been, or contemporaneously are, paid and (ii) we pay or
set aside cash (or additional shares of 8% Convertible Preference Shares) in
amounts sufficient to pay the dividend for the current dividend period. In any
event, we may purchase or acquire such junior shares either (A) pursuant to any
employee or director incentive or benefit plan or arrangement or (B) in exchange
solely for junior shares.
So long as the 8% Convertible Preference Shares are outstanding, we may not
redeem or purchase any Triton shares ranking equal as to dividends to the 8%
Convertible Preference Shares or any other Triton shares ranking equal to the 8%
Convertible Preference Shares as to liquidation rights, or make any
distributions as to such shares, unless full dividends on all outstanding 8%
Convertible Preference Shares have been, or contemporaneously are, paid.
Conversion. Holders of 8% Convertible Preference Shares generally have the
----------
right to convert their 8% Convertible Preference Shares into ordinary shares at
any time before redemption at the conversion price in effect at the time of
conversion. The current conversion price is $17.50 per ordinary share so that
each 8% Convertible Preference Share is convertible into four ordinary shares.
The conversion price is subject to adjustment under certain circumstances. Upon
the conversion of 8% Convertible Preference Shares, the holder is also entitled
to receive an amount in cash equal to all accumulated and unpaid dividends on
the 8% Convertible Preference Shares converted through the effective date of
conversion.
Redemption. We cannot redeem the 8% Convertible Preference Shares before
----------
September 30, 2001. Beginning September 30, 2001, we can redeem all, but not
less than all, of the outstanding 8% Convertible Preference Shares if the
average market value of the ordinary shares as calculated below is above certain
market values. The redemption price will be equal to $70 per share, plus an
amount equal to all accumulated but unpaid dividends, and will be payable in
cash.
The average market value is determined by averaging the closing price of
the ordinary shares for the 20 trading days preceding the delivery of the notice
of redemption. We may only redeem the 8% Convertible Preference Shares if this
average market value exceeds the average market value corresponding to the
six-month period set forth below:
Redemption Notice Given on the Six Months Ending: Average Price
March 31, 2002 $ 28.54
September 30, 2002 31.14
March 31, 2003 34.20
September 30, 2003 37.58
March 31, 2004 32.57
September 30, 2004 34.97
March 31, 2005 37.60
Beginning April 1, 2005, the minimum average market value will be increased
every six months to reflect an internal rate of return of 20% for a holder
purchasing 8% Convertible Preference Shares as of the date the first 8%
Convertible Preference Share was issued. The minimum average market values set
forth above will be adjusted in the event of any combination, subdivision or
reclassification of ordinary shares, or any similar event.
Liquidation Rights. The liquidation preference of the 8% Convertible
-------------------
Preference Shares is $70 per share, plus accumulated and unpaid dividends.
Voting Rights. The holders of the 8% Convertible Preference Shares
--------------
generally vote with the holders of the ordinary shares on all matters brought
before our shareholders. In addition, a class vote of the 8% Convertible
Preference Shares is required in certain limited circumstances. The holders of
the 8% Convertible Preference Shares will also be entitled to elect two
directors of Triton if we do not pay dividends on the 8% Convertible Preference
Shares under certain circumstances. When voting with the holders of the ordinary
shares, the holders of the 8% Convertible Preference Shares have the number of
votes for each share that they would have if they had converted their shares
into ordinary shares on the related record date. When voting as a class, the
holders of the 8% Convertible Preference Shares have one vote per share.
We have entered into a Shareholders Agreement with HM4 Triton, L.P. The
Shareholders Agreement provides that, in general, for so long as the entire
board of directors consists of ten members, HM4 Triton, L.P. (and its designated
transferees, collectively) may designate four nominees for election to the board
of directors (with such number of designees increasing or decreasing
proportionately with any change in the total number of members of the board of
directors and with any fractional directorship rounded up to the next whole
number). The right of HM4 Triton, L.P. (and its designated transferees) to
designate nominees for election to the board of directors will be reduced if the
number of ordinary shares held by HM4 Triton, L.P. and its affiliates (assuming
conversion of 8% Convertible Preference Shares into ordinary shares) represents
less than certain specified percentages of the number of ordinary shares
(assuming conversion of 8% Convertible Preference Shares into ordinary shares)
purchased by HM4 Triton, L.P. under a stock purchase agreement between HM4
Triton, L.P. and us.
In the Shareholders Agreement, we also agreed that we would not take
certain fundamental corporate actions without the consent of HM4 Triton, L.P.
Some of the actions that would require HM4 Triton, L.P.'s consent are listed
below:
- entering into a merger or similar business combination transaction, or
effecting a reorganization, recapitalization or other transaction pursuant
to which a majority of the outstanding ordinary shares or any 8%
Convertible Preference Shares are exchanged for securities, cash or
other property;
- authorizing, creating or modifying the terms of any securities that would
rank equal to or senior to the 8% Convertible Preference Shares;
- selling assets comprising more than 50% of the market value of Triton;
- paying dividends on our ordinary shares;
- incurring certain levels of debt; and
- commencing a tender offer or exchange offer for any of our ordinary shares.
5% Convertible Preference Shares
Dividends. We are required to pay dividends on the 5% Convertible
---------
Preference Shares semi-annually at the rate of 5% per year of the redemption
price per share (initially $34.41) for each semi-annual dividend period on March
30 and September 30 of each year. Dividends on the 5% Convertible Preference
Shares are cumulative.
If we do not pay the dividend on the 5% Convertible Preference Shares
within 15 days after a dividend payment date, dividends payable on the 5%
Convertible Preference Shares will be increased by an amount equal to the prime
rate of Morgan Guaranty Trust Company of New York as in effect plus 1% applied
against the amount of unpaid dividends until the dividends are paid.
The 5% Convertible Preference Shares have priority as to dividends over
ordinary shares and any other class or series of shares ranking junior to the 5%
Convertible Preference Shares. We may not pay a dividend (other than dividends
payable solely in shares ranking junior to the 5% Convertible Preference Shares)
or make any other distribution on any ordinary shares or other shares ranking
junior to the 5% Convertible Preference Shares unless all dividends on the 5%
Convertible Preference Shares have been paid. We may not pay dividends on the 5%
Convertible Preference Shares or on any class or series of shares ranking equal
to the 5% Convertible Preference Shares unless we have paid, or concurrently
pay, all accrued and unpaid dividends for all prior periods on the 5%
Convertible Preference Shares or the class or series of shares ranking equal to
the 5% Convertible Preference Shares, as the case may be. If any accrued
dividends are not paid in full on the 5% Convertible Preference Shares and any
class or series of shares ranking equal to the 5% Convertible Preference Shares,
we must pay any dividends on the 5% Convertible Preference Shares and such
equally-ranked shares so that the amount of dividends declared per share on the
5% Convertible Preference Shares and such equally-ranked shares will bear the
same ratio that accrued and unpaid dividends per share on the 5% Convertible
Preference Shares and such equally-ranked shares bear to each other.
The 5% Convertible Preference Shares are junior as to dividends to any
series or class of shares ranking senior to them and if we fail to pay dividends
on any senior-ranked shares at any time, we may not pay any dividends on the 5%
Convertible Preference Shares.
Conversion. Subject to certain limitations, holders of 5% Convertible
----------
Preference Shares have the right to convert their 5% Convertible Preference
Shares into ordinary shares at any time before redemption. Currently, each 5%
Convertible Preference Share is convertible into one ordinary share. The
conversion price is subject to adjustment under certain circumstances. No
payment or adjustment will be made for accrued or unpaid dividends on the 5%
Convertible Preference Shares upon conversion of 5% Convertible Preference
Shares except under certain circumstances.
Redemption. We can redeem the 5% Convertible Preference Shares at any time
----------
in whole or in part. The redemption price is equal to $34.41 per share, plus an
amount equal to all accumulated but unpaid dividends, and is payable in cash.
If any 5% Convertible Preference Shares are outstanding on March 30, 2004,
we are required to redeem the 5% Convertible Preference Shares. In this event,
we may redeem the 5% Convertible Preference Shares by
- paying cash at the $34.41 redemption price plus all accumulated and unpaid
dividends to the redemption date;
- issuing to the holder a number of ordinary shares with a market value equal
to the $34.41 redemption price plus all accumulated and unpaid dividends
to the redemption date; or
- a combination of cash or ordinary shares equal to the $34.41 redemption
price plus all accumulated and unpaid dividends to the redemption
date.
Liquidation Rights. The liquidation preference of the 5% Convertible
-------------------
Preference Shares is $34.41 per share, plus accumulated and unpaid dividends.
Voting Rights. Except as described below and as required under Cayman
--------------
Islands law, the holders of the 5% Convertible Preference Shares generally have
no voting rights. So long as any 5% Convertible Preference Shares are
outstanding, the consent of the holders of at least two-thirds of the
outstanding 5% Convertible Preference Shares is required if we issue other than
wholly for cash consideration, any shares of any class of shares that would rank
senior to the 5% Convertible Preference Shares in dividend or liquidation
rights, or if we propose to amend our articles of association in a manner
adversely affecting the rights of the holders of the 5% Convertible Preference
Shares. However, we may amend our articles of association to increase the number
of authorized shares of Triton's preference shares without the vote of the
holders of the outstanding 5% Convertible Preference Shares. When voting as a
class, the holders of the 5% Convertible Preference Shares have one vote per
share.
SHAREHOLDER RIGHTS PLAN
We have adopted a Shareholder Rights Plan. Under this plan, preference
share rights attach to all ordinary shares at the rate of one right for each
ordinary share. Each right entitles the ordinary shareholder to purchase one
one-thousandth of our Series A Junior Participating Preference Shares, par value
$.01 per share ("Junior Preference Shares"), at a price of $120 per one
one-thousandth of a Junior Preference Share, subject to adjustment. Generally,
the rights only become distributable 10 days following public announcement that
a person has acquired beneficial ownership of 15% or more of our ordinary shares
or 10 business days following commencement of a tender offer or exchange offer
for 15% or more of our outstanding ordinary shares. If, among other events, any
person becomes the beneficial owner of 15% or more of our ordinary shares, each
right not owned by such person generally becomes the right to purchase a number
of ordinary shares equal to the number obtained by dividing the right's exercise
price (currently $120) by 50% of the market price of the ordinary shares on the
date of the first occurrence. In addition, if we are subsequently merged or
certain other extraordinary business transactions are consummated, each right
generally becomes a right to purchase a number of shares of common stock of the
acquiring person equal to the number obtained by dividing the right's exercise
price by 50% of the market price of the common stock on the date of the first
occurrence. Pursuant to the terms of the plan, any acquisition of Triton shares
by HM4 Triton, L.P. or its affiliates will not result in the distribution of
rights unless and until HM4 Triton, L.P.'s ownership of Triton shares is reduced
below certain levels.
Under certain circumstances, our board of directors may determine that a
tender offer or merger is fair to all our shareholders and prevent the rights
from being exercised. At any time after a person or group acquires 15% or more
of the ordinary shares outstanding and prior to the acquisition by such person
or group of 50% or more of the outstanding ordinary shares, our board of
directors may exchange the rights (other than rights owned by such person or
group which will become void), in whole or in part, at an exchange ratio of one
ordinary share, or one one-thousandth of a Junior Preference Share, per right
(subject to adjustment). We can amend the rights (except the redemption price)
in any manner prior to the public announcement that a 15% position has been
acquired or a tender offer has been commenced. We can redeem the rights at $0.01
per right at any time prior to the time that a 15% position has been acquired.
The rights will expire on May 22, 2005, unless we redeem the rights before then.
Any Junior Preference Shares we issue pursuant to the Shareholders Rights
Plan will rank junior as to dividends and liquidation to both the 8% Convertible
Preference Shares and the 5% Convertible Preference Shares. Each Junior
Preference Share will be entitled, if we so declare, to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend of 1,000 times the dividend declared per ordinary share. If we
liquidate, the holders of the Junior Preference Shares will be entitled to a
minimum preferential liquidation payment of $1,000 per share (plus any accrued
but unpaid dividends) but will be entitled to an aggregate payment of 1,000
times the payment made per ordinary share. Each Junior Preference Share will
have 1,000 votes, voting together with ordinary shares. Finally, if ordinary
shares are converted or exchanged in connection with any merger, consolidation
or other transaction, each Junior Preference Share will be entitled to receive
1,000 times the amount received per ordinary share. These rights are protected
by customary antidilution provisions.
ORDINARY SHARES
General. Under our articles of association, we are authorized to issue
200,000,000 ordinary shares. There were ____________ ordinary shares outstanding
as of ____________, 1999.
Voting and Other Rights. Holders of ordinary shares are entitled to one
vote for each share held on all matters submitted to shareholders' meetings,
including the election and removal of directors. Holders of ordinary shares vote
together as a single class with any voting preference shares unless the terms of
any voting preference shares or the articles of association otherwise provide.
The quorum required for a general meeting of the shareholders is a majority of
the outstanding ordinary shares entitled to vote at the meeting.
All matters voted upon at any duly held shareholders' meeting shall be
carried by a majority of the votes cast at the meeting by shareholders present
in person or by proxy at a duly convened meeting, except that
- directors are elected by plurality vote;
- approval of a merger or a similar arrangement requires the approval by 75%
of the votes cast (but, in any event at least a majority of the
outstanding shares); and
- approval of a Special Resolution (as defined below) requires the approval
of at least two-thirds of the votes cast by shareholders present in person
or by proxy at a duly convened meeting.
A Special Resolution is required to approve a change of the corporate name,
the voluntary dissolution, liquidation or winding-up of the affairs of Triton, a
reduction of paid-up share capital, and any amendment to our memorandum or
articles of association. We must give at least 10 days' notice of a general
meeting.
Because shareholders are not entitled to cumulate their votes, shareholders
holding a majority of the outstanding ordinary shares, voting together as a
class with the holders of any outstanding voting preference shares, are able to
elect all members of our board of directors. Our directors are elected in three
classes of approximately equal number and for a term of three years. Therefore,
shareholders will not vote for the election of a majority of directors in any
single year. Holders of ordinary shares have no preemptive rights.
Unless the terms of any class of our shares otherwise provide, the rights
of the class may not be varied unless the change is approved by all the holders
of that class in writing or is approved at a meeting of the holders of the class
by a Special Resolution. Unless otherwise provided, the rights will not be
deemed varied if we (1) allot other shares which confer on their holders more
favorable voting rights or (2) create or issue other shares with preferential
rights as to dividends or capital.
Neither Cayman Islands law nor the articles of association impose any
limitation on the right of nonresident holders to hold or vote their ordinary
shares.
Dividend Rights. The holders of ordinary shares are entitled at any time to
receive such dividends as are declared by the board of directors. Our ability to
pay dividends is restricted by covenants in the Shareholders Agreement with HM4
Triton, L.P. We currently intend to retain earnings for use in our business and
the financing of our capital requirements. The payment of any future cash
dividends is necessarily dependent upon our earnings and financial needs, along
with applicable legal and contractual restrictions.
Liquidation. If Triton ever liquidates, dissolves or winds up its business
and a shareholder has any outstanding obligations to Triton (whether presently
payable or not), the liquidator appointed to oversee Triton's liquidation may
deduct from any amount payable in respect of the shareholder's ordinary shares
the aggregate amount of such obligation. The liquidator may distribute, in kind,
to the holders of the ordinary shares remaining assets of Triton. Alternatively,
the liquidator may dispose of all or any part of such remaining assets for cash,
or other property, and may sell all or any part of the consideration so
received, and may distribute the consideration received or any balance or
proceeds to holders of the ordinary shares. The liquidator may vest the whole or
any part of such assets in trust as the liquidator thinks fit, so long as no
shareholder has any liability.
DESCRIPTION OF WARRANTS
We may issue Warrants to purchase Debt Securities, preference shares or
ordinary shares. We may issue Warrants independently of or together with these
securities. Each series of Warrants will be issued under a separate warrant
agreement to be entered into between us and a bank or trust company, as warrant
agent. The warrant agent will act solely as our agent in connection with the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any registered holders or beneficial owners of Warrants. This
summary of certain provisions of the Warrants and the warrant agreement is not
complete. You should refer to the warrant agreement relating to the specific
Warrants being offered, including the forms of warrant certificate representing
the specific Warrants, for the complete terms. We will file the applicable
warrant agreement, together with the form of Warrants, with the SEC before the
offering of the specific Warrants.
Each Warrant will entitle the holder to purchase the principal amount of
Debt Securities or the number of preference shares or ordinary shares at the
exercise price set forth in, or calculable as set forth in, the applicable
prospectus supplement. The exercise price may be subject to adjustment upon the
occurrence of certain events, as set forth in the applicable prospectus
supplement. After the close of business on the expiration date of the Warrants,
unexercised Warrants will become void. We will also specify in the applicable
prospectus supplement the place or places where, and the manner in which,
Warrants may be exercised.
Prior to the exercise of any Warrants, holders of the Warrants will not
have any of the rights of holders of the Debt Securities, preference shares or
ordinary shares, as the case may be, purchasable upon exercise of those
Warrants, including, (1) in the case of Warrants for the purchase of Debt
Securities, the right to receive payments of principal of (and premium, if any)
or interest, if any, on the Debt Securities purchasable upon exercise or to
enforce covenants in the applicable indenture, or (2) in the case of Warrants
for the purchase of preference shares or ordinary shares, the right to receive
payments of dividends, if any, on the preference shares or ordinary shares
purchasable upon exercise or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
We may sell the Debt Securities, preference shares, depositary shares,
ordinary shares and Warrants being offered by using this prospectus:
- to or through underwriters;
- to or through dealers;
- through agents;
- through rights offerings; or
- directly to purchasers.
We will set forth the terms of the offering of any securities being offered in
the applicable prospectus supplement.
If we utilize underwriters in an offering of securities using this
prospectus, we will execute an underwriting agreement with those underwriters.
The underwriting agreement will provide that the obligations of the underwriters
with respect to a sale of the offered securities are subject to certain
conditions precedent and that the underwriters will be obligated to purchase all
the offered securities if any are purchased. Underwriters may sell those
securities to or through dealers. The underwriters may change any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers from time to time. If we utilize underwriters in an offering of
securities using this prospectus, the applicable prospectus supplement will
contain a statement regarding the intention, if any, of the underwriters to make
a market in the offered securities.
If we utilize a dealer in an offering of securities using this prospectus,
we will sell the offered securities to the dealer, as principal. The dealer may
then resell those securities to the public at a fixed price or at varying prices
to be determined by the dealer at the time of resale.
We may also use this prospectus to offer and sell securities through agents
designated by us from time to time. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a reasonable efforts basis for the
period of its appointment.
Underwriters, dealers or agents participating in a distribution of
securities by use of this prospectus may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the offered securities, whether received from us or from purchasers of
offered securities for whom they act as agent, may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933.
Under agreements that we may enter into, underwriters, dealers or agents
who participate in the distribution of securities by use of this prospectus may
be entitled to indemnification by us against certain liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect to
payments that those underwriters, dealers or agents may be required to make.
We may offer to sell securities either at a fixed price or prices which may
be changed, at market prices prevailing at the time of sale, at prices related
to prevailing market prices or at negotiated prices.
We may also use this prospectus to directly solicit offers to purchase
securities. Except as set forth in the applicable prospectus supplement, none of
our directors, officers, or employees will solicit or receive a commission in
connection with those direct sales. Those persons may respond to inquiries by
potential purchasers and perform ministerial and clerical work in connection
with direct sales.
We may authorize underwriters, dealers and agents to solicit offers by
certain institutions to purchase securities pursuant to delayed delivery
contracts providing for payment and delivery on a future date specified in the
applicable prospectus supplement. Institutions with which delayed delivery
contracts may be made include commercial and savings banks, insurance companies,
educational and charitable institutions and other institutions we may approve.
The obligations of any purchaser under any delayed delivery contract will not be
subject to any conditions except that any related sale of offered securities to
underwriters shall have occurred and the purchase by an institution of the
securities covered by its delayed delivery contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which that institution is subject.
WHERE YOU CAN FIND MORE INFORMATION
ABOUT TRITON
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission (the "SEC"). You may
read and copy any document we file by visiting the SEC's public reference rooms
in Washington, D.C., New York, New York and Chicago, Illinois. You may obtain
information regarding the operation of the public reference rooms by calling the
SEC at 1-800-SEC-0330. Our SEC filings are also available over the Internet at
the SEC's web site at http://www.sec.gov. You may also inspect our SEC reports
and other information at the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005.
We have filed a registration statement on Form S-3 with the SEC covering
the securities. For further information on Triton and the securities, please
refer to our registration statement and its exhibits. This prospectus summarizes
material provisions of contracts and other documents that we refer to you. As
the prospectus may not contain all the information you may find important, you
should review the full text of these documents. We have included copies of these
documents as exhibits to our registration statement of which this prospectus is
a part.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and any
later information that we file with the SEC will update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we make with the SEC under Section 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 until our offering is completed:
(i) Annual Report on Form 10-K for the year ended December 31, 1998,
(ii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and
(iii) the description of the ordinary shares contained in Triton's
Registration Statement on Form 8-A dated March 25, 1996, as amended by Form
8-A/A, dated August 14, 1996, Form 8-A/A dated October 2, 1998, and Form 8-A/A
dated January 31, 1999.
You should rely only on the information incorporated by reference or
provided in this prospectus and the applicable prospectus supplement. We have
not authorized anyone to provide you with information that is different. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer of securities in any jurisdiction where
the offer or sale is not permitted. You should not assume that the information
in this prospectus or the applicable prospectus supplement is accurate as of any
date other than the date on the front of the document.
You may request a copy of any of the documents that are incorporated by
reference in this prospectus, at no cost, by writing or telephoning us as
follows: Triton Energy, Investor Relations, 6688 North Central Expressway, Suite
1400, Dallas, Texas 75206-9926, telephone (214) 691-5200.
EXPERTS
The audited financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31, 1998
have been incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
auditing and accounting.
Certain information with respect to the gas and oil reserves of Triton and
its subsidiaries derived from the report of DeGolyer and MacNaughton,
independent petroleum engineers, has been incorporated in this prospectus by
reference in reliance upon such firm as experts with respect to the matters
contained therein.
LEGAL OPINIONS
W.S. Walker & Company, Grand Cayman, Cayman Islands, will provide an
opinion for us regarding the validity of the Offered Securities and
_____________ will provide such an opinion for the underwriters.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by Triton Energy Limited ("Triton" or the
"Company") in connection with the offering described in this Registration
Statement are as follows:
Registration Fee $ 69,500
Legal fees and expenses 75,000
Blue Sky fees and expenses 10,000
Accounting fees and expenses 30,000
Fees and expenses of Trustee and counsel 15,000
Printing and duplication expenses 150,000
Miscellaneous expenses 5,000
--------
Total $354,500
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Triton is a Cayman Islands company. Article XXXIII of Triton's Articles of
Association contains provisions with respect to indemnification of Triton's
officers and directors. Such provisions provide that Triton shall indemnify, in
accordance with and to the full extent now or hereafter permitted by law, any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, an
action by or in the right of Triton), by reason of his acting as a director,
officer, employee or agent of, or his acting in any other capacity for or on
behalf of, Triton, against any liability or expense actually and reasonably
incurred by such person in respect thereof. Triton shall also advance the
expenses of defending any such act, suit or proceeding in accordance with and to
the full extent now or hereafter permitted by law. Such indemnification and
advancement of expenses are not exclusive of any other right to indemnification
or advancement of expenses provided by law or otherwise. The Articles of
Association also provide that except under certain circumstances, directors of
Triton shall not be personally liable to Triton or its shareholders for monetary
damages for breach of fiduciary duties as a director.
The Companies Law (1995 Revision) of the Cayman Islands does not set out
any specific restrictions on the ability of a company to indemnify officers or
directors. However, the application of basic principles and certain Commonwealth
case law which is likely to be persuasive in the Cayman Islands, would indicate
that indemnification is generally permissible except in the event that there had
been fraud or willful default on the part of the officer or director or reckless
disregard of his duties and obligations to Triton.
ITEM 16. EXHIBITS.
Exhibit
<TABLE>
<CAPTION>
<S> <C> <C>
No. Description of Exhibit
- ---- ------------------------------------------------------------------------------------
1.1 Form of Underwriting Agreement (Debt Securities and Warrants to Purchase
Debt Securities). (previously filed as Exhibit 1.2 to the Company's Registration
Statement on Form S-3 (No. 333-11703) and incorporated herein by reference)
1.2 Form of Underwriting Agreement (Equity Securities and Warrants
to Purchase Equity Securities). (previously filed as Exhibit 1.3 to the Company's
Registration Statement on Form S-3 (No. 333-11703) and incorporated herein by
reference)
4.1 Form of Debt Securities.
4.2 Form of Senior Debt Indenture
4.3 Form of Senior Subordinated Debt Indenture
4.4 Form of Subordinated Debt Indenture
4.5 Form of Warrant Agreement for Preference Shares and Ordinary
Shares (including form of Warrant Certificate). (previously filed as Exhibit 4.8 to
the Company's Registration Statement on Form S-3 (No. 333-11703) and
incorporated herein by reference)
4.6 Form of Warrant Agreement for Debt Securities (including form
of Warrant Certificate) (previously filed as Exhibit 4.8 to the Company's
Registration Statement on Form S-3 (No. 333-11703) and incorporated herein
by reference)
5.1 * Opinion of Simpson Thacher & Bartlett.
5.2 * Opinion of W.S. Walker & Company.
12.1 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference
to Exhibit 12.1 to the Company's Quarterly Report on Form
10-Q for the Quarter ended March 31, 1999 (the "Form 10-Q")).
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred
Dividends (incorporated by reference to Exhibit 12.2 to the Form 10-Q).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of DeGolyer and MacNaughton.
23.3 * Consent of Simpson Thacher & Bartlett.
23.4 * Consent of W.S. Walker & Company.
25.1 Power of Attorney
</TABLE>
* To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 462(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the " Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraph (1)(i) and (1)(ii) above do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrants pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Triton
Energy Limited annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Triton
pursuant to the foregoing provisions, or otherwise, Triton has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Triton of expenses incurred or paid by a
director, officer or controlling person of Triton in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, Triton
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under section 305(b)2 of the
Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Dallas, State of Texas, on June 18, 1999.
TRITON ENERGY LIMITED
By:/s/James C. Musselman
------------------------
James C. Musselman,
President and Chief
Executive Officer
/s/Bernard Gros-Dubois
-----------------------
Bernard Gros-Dubois
Vice President
(Principal Financial
and Accounting Officer)
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on June 18, 1999 by the following
persons in the capacities indicated.
SIGNATURE TITLE
--------- -----
* Chairman of the Board of Directors
- --------------------
(Thomas O. Hicks)
* President, Chief Executive Officer and Director
- --------------------
(James C. Musselman) (Principal Executive Officer)
* Director
- --------------------
(Sheldon R. Erikson)
Director
- --------------------
(Jack D. Furst)
* Director
- --------------------
(Fitzgerald S. Hudson)
* Director
- --------------------
(John R. Huff)
* Director
- --------------------
(Michael E. McMahon)
* Director
- --------------------
(Lamar Norsworthy)
* Director
- --------------------
(C. Richard Vermillion)
* Director
- --------------------
(J. Otis Winters)
* By: /s/Bernard Gros-Dubois
--------------------------------------------
Bernard Gros-Dubois, as attorney-in-fact
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
- ---- ------------------------
<TABLE>
<CAPTION>
<C> <S> <C>
1.1 Form of Underwriting Agreement (Debt Securities and Warrants to Purchase
Debt Securities). (previously filed as Exhibit 1.2 to the Company's Registration
Statement on Form S-3 (No. 333-11703) and incorporated herein by reference)
1.2 Form of Underwriting Agreement (Equity Securities and Warrants
to Purchase Equity Securities). (previously filed as Exhibit 1.3 to the Company's
Registration Statement on Form S-3 (No. 333-11703) and incorporated herein by
reference)
4.1 Form of Debt Securities.
4.2 Form of Senior Debt Indenture
4.3 Form of Senior Subordinated Debt Indenture
4.4 Form of Subordinated Debt Indenture
4.5 Form of Warrant Agreement for Preference Shares and Ordinary
Shares (including form of Warrant Certificate). (previously filed as Exhibit 4.8 to
the Company's Registration Statement on Form S-3 (No. 333-11703) and
incorporated herein by reference)
4.6 Form of Warrant Agreement for Debt Securities (including form
of Warrant Certificate) (previously filed as Exhibit 4.8 to the Company's
Registration Statement on Form S-3 (No. 333-11703) and incorporated herein
by reference)
5.1 * Opinion of Simpson Thacher & Bartlett.
5.2 * Opinion of W.S. Walker & Company.
12.1 Computation of Ratio of Earnings to Fixed Charges (incorporated by reference
to Exhibit 12.1 to the Company's Quarterly Report on Form
10-Q for the Quarter ended March 31, 1999 (the "Form 10-Q")).
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred
Dividends (incorporated by reference to Exhibit 12.2 to the Form 10-Q).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of DeGolyer and MacNaughton.
23.3 * Consent of Simpson Thacher & Bartlett.
23.4 * Consent of W.S. Walker & Company.
25.1 Power of Attorney
* To be filed by amendment.
</TABLE>
EXHIBIT 4.1
TRITON ENERGY LIMITED
[Title of Series of Securities]
No. ____ $__________
[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, a Cayman Islands company (such company, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of _____________ at the
office or agency of the Company referred to below, on ___________, and to pay
interest, semi-annually on _________ and _________, of each year, on said
principal sum at said office or agency, at the rate of ____% per annum, from the
___________ or ___________, as the case may be, next preceding the date of this
Security to which interest has been paid, unless the date hereof is the date to
which interest has been paid, in which case from the date of this Security, or
unless no interest has been paid on the Securities, in which case from
_________, until payment of said principal sum has been made or duly provided
for. Notwithstanding the foregoing, if the date hereof is after the ____ day of
the calendar month preceding any __________ or __________, as the case may be,
and prior to such __________ or __________, this Security shall bear interest
from such __________ or __________; provided, however, that if and to the extent
that the Company shall default in the payment of interest due on such __________
or __________, then this Security shall bear interest from the next preceding
__________ or __________ to which interest has been paid, or, if no interest has
been paid on the Securities, from ____________. The interest so payable on any
_________ or __________ will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the person in whose name
this Security is registered at the close of business on the ____ day of the
calendar month preceding such _________ or __________.
Reference is made to the further provisions of this Security set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
The Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
in its name and on its behalf by the signature of its _______________ and by
signature of its _______________ and has caused its corporate seal to be affixed
hereunto or imprinted hereon.
Dated: _______________
TRUSTEE'S CERTIFICATE OF [SEAL] TRITON ENERGY LIMITED
AUTHENTICATION
This is one of the Securities of
the series designated
herein referred to in the within
mentioned Indenture. By:_____________________
_______________, as Trustee
By:_____________________
By:_____________________________
Authorized Officer
TRITON ENERGY LIMITED
[Title of Series of Securities]
This Security is one of a duly authorized issue of Securities of the
Company, designated as its ____________________ (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) to the aggregate principal amount of $_____________, all issued or to
be issued under and pursuant to an Indenture, dated as of ___________ (herein
called the "Indenture"), duly executed and delivered by each of the Companies
and __________, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities are issuable in registered form only, without
coupons, in denominations of $______ and integral multiples thereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof and interest hereon may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities at any time by the
Company and the Trustee with the consent of the holders of a majority in
aggregate principal amount of the outstanding Securities. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the outstanding Securities, on behalf of the holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the holder of this Security shall
be conclusive and binding upon such holder and upon all future holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
Subject to the terms of the Indenture, the Company may elect [either (i)]
to defease and be discharged from any and all obligations with respect to the
Securities [or (ii) to be released from their obligations with respect to
certain covenants applicable to the Securities], upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Security.
[Discussion of provisions relating to redemption, if applicable.]
[Discussion of provisions relating to subordination, if applicable.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligations of the Company, which are
absolute and unconditional, to pay the principal of and interest on this
Security at the place, at the respective times, at the rate and in the coin or
currency prescribed herein.
Upon the presentment for registration of transfer of this Security at the
office or agency of the Company at ____________________, a new Security or
Securities of authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this Security, the
Company, the Trustee or any Security registrar, co-registrar, paying agent or
authenticating agent, may deem and treat the registered holder hereof as the
absolute owner of this Security, for the purpose of receiving payment hereof, or
on account hereof, and for all other purposes, and the Company or the Trustee or
any Security registrar, co-registrar, paying agent or authenticating agent shall
not be affected by any notice to the contrary.
EXHIBIT 4.2
TRITON ENERGY LIMITED
AND
,
AS TRUSTEE
FORM OF SENIOR INDENTURE
DATED AS OF _________ __, _______
CROSS REFERENCE SHEET*
___________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
___________ __, _______ between TRITON ENERGY LIMITED and _____________________,
Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
- --------------------- ----------------------
310(a)(1), (2) and (5) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10(a), (b) and (d)
310(c) Inapplicable
311(a) 6.13
311(b) 6.13
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)(i) and (ii)
312(c) 4.2(c)
313(a) 4.4(a(i),(ii),(iii),(iv),(v),(vi)and(vii)
313(a)(5) Inapplicable
313(b)(1) Inapplicable
313(b)(2) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.8
315(e) 5.9
316(a)(1) 5.7
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.4
317(a) 5.2
317(b) 3.5(a)
318(a) 11.7
_____________________
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE ONE
DEFINITIONS
Additional Amounts
Affiliate
Authenticating Agent
Bankruptcy Code
Board of Directors
Board Resolution
Business Day
Commission
Consolidated Net Tangible Assets
Corporate Trust Office
Currency Hedge Obligations
Depositary
Dollars
$
Exchange Act
Event of Default
Funded Indebtedness
Global Security
Holder
Holder of Securities
Securityholder
Interest Rate Hedging Agreements
Indebtedness
Indenture
interest
Issuer
Issuer Order
Officers' Certificate
Oil and Gas Hedging Contracts
Opinion of Counsel
Ordinary Course Lien
original issue date
original issue discount
Original Issue Discount Security
Outstanding
Periodic Offering
Person
Place of Payment
principal
principal amount
record date
Responsible Officer
Restricted Subsidiary
Securities Act
Security
Securities
Subsidiary
Trust Indenture Act of 1939
Trustee
U.S. Government Obligations
vice president
Yield to Maturity
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally
SECTION 2.2 Form of Trustee's Certificate of Authentication
SECTION 2.3 Amount Unlimited, Issuable in Series
SECTION 2.4 Authentication and Delivery of Securities
SECTION 2.5 Execution of Securities
SECTION 2.6 Certificate of Authentication
SECTION 2.7 Denomination and Date of Securities; Payments of Interest
SECTION 2.8 Registration, Transfer and Exchange
SECTION 2.10 Cancellation of Securities; Disposition Thereof
SECTION 2.11 Temporary Securities .
SECTION 2.12 CUSIP Numbers
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest
SECTION 3.2 Offices for Notices and Payments, etc .
SECTION 3.3 No Interest Extension
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office
SECTION 3.5 Provision as to Paying Agent
SECTION 3.6 Limitation on Liens
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists
SECTION 4.3 Reports by the Issuer
SECTION 4.4 Reports by the Trustee
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default
SECTION 5.2 Payment of Securities on Default; Suit Therefor
SECTION 5.3 Application of Moneys Collected by Trustee
SECTION 5.4 Proceedings by Securityholders
SECTION 5.5 Proceedings by Trustee
SECTION 5.6 Remedies Cumulative and Continuing
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders
SECTION 5.8 Notice of Defaults
SECTION 5.9 Undertaking to Pay Costs
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default
SECTION 6.2 Certain Rights of the Trustee
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds
Thereof
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc
SECTION 6.5 Moneys Held by Trustee .
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc.
SECTION 6.8 Qualification of Trustee; Conflicting Interests
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee
SECTION 6.11 Acceptance of Appointment by Successor Trustee
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee
SECTION 6.13 Preferential Collection of Claims Against the
Issuer
SECTION 6.14 Appointment of Authenticating Agent
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities
SECTION 7.3 Holders to be Treated as Owners
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding
SECTION 7.5 Right of Revocation of Action Taken
SECTION 7.6 Record Date for Consents and Waivers
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders
SECTION 8.3 Effect of Supplemental Indenture
SECTION 8.4 Documents to Be Given to Trustee
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms
SECTION 9.2 Successor Corporation to be Substituted
SECTION 9.3 Opinion of Counsel to be Given Trustee
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities
SECTION 10.3 Repayment of Moneys Held by Paying Agent
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years
SECTION 10.5 Indemnity for U.S. Government Obligations
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939
SECTION 11.8 GOVERNING LAW
SECTION 11.9 Submission to Jurisdiction
SECTION 11.10 Counterparts
SECTION 11.11 Effect of Headings
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article
SECTION 12.2 Notice of Redemption; Partial Redemptions
SECTION 12.3 Payment of Securities Called for Redemption
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption
SECTION 12.5 Mandatory and Optional Sinking Funds
ARTICLE THIRTEEN
ADDITIONAL AMOUNTS
SECTION 13.1 Additional Amounts 3
FORM OF SENIOR INDENTURE
THIS SENIOR INDENTURE, dated as of _________ __, _______ between TRITON
ENERGY LIMITED, a Cayman Islands company (the "Issuer"), and
_____________________, a _____________________, as trustee (the "Trustee").
W I T N E S S E T H :
---------------------
WHEREAS, the Issuer has duly authorized the issuance from time to time of
its unsecured 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;
WHEREAS, the Issuer has 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 Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided herein or in any indenture supplemental hereto or
unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted on the date of this Indenture.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz. as
of _________ __, _______.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Additional Amounts" has the meaning set forth in Section 13.1.
"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 Sections 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless otherwise
specified in a Board Resolution and an Officers' Certificate with respect to a
particular series of Securities, a day that (a) in the Place of Payment (or in
any of the Places of Payment, if more than one) in which amounts are payable, as
specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions
are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"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.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and, if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"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.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to the Depositary for such series in accordance with Section
2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean, in the case of any Security, the Person in whose name such Security is
registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if any,
on indebtedness for money borrowed of such Person, indebtedness of such Person
evidenced by bonds, notes, debentures or similar obligations, and any guaranty
by such Person of any indebtedness for money borrowed or indebtedness evidenced
by bonds, notes, debentures or similar obligations of any other Person, whether
any such indebtedness or guaranty is outstanding on the date of this Indenture
or is thereafter created, assumed or incurred, (ii) obligations of such Person
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (iii) the principal of and premium, if
any, and interest, if any, on indebtedness incurred, assumed or guaranteed by
such Person in connection with the acquisition by it or any of its subsidiaries
of any other businesses, properties or other assets; (iv) lease obligations
which such Person capitalized in accordance with Statement of Financial
Accounting Standards No. 13 promulgated by the Financial Accounting Standards
Board or such other generally accepted accounting principles as may be from time
to time in effect; (v) any indebtedness of such Person representing the balance
deferred and unpaid of the purchase price of any property or interest therein
(except any such balance that constitutes an accrued expense or trade payable)
and any guaranty, endorsement or other contingent obligation of such Person in
respect of any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person; and (vi)
obligations of such Person under interest rate, commodity or currency swaps,
caps, collars, options and similar arrangements if and to the extent that any of
the foregoing indebtedness in (i) through (vi) would appear as a liability on
the balance sheet of such Person in accordance with generally accepted
accounting principles; and
(b) any amendments, modifications, refundings, renewals or extensions
of any indebtedness or obligation described as Indebtedness in clause (a) above.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing Securities
(including, without limitation, any Original Issue Discount Security that by its
terms bears interest only after maturity or upon default in any other payment
due on such Security), interest payable after maturity (whether at stated
maturity, upon acceleration or redemption or otherwise) or after the date, if
any, on which the Issuer becomes obligated to acquire a Security, whether upon
conversion, by purchase or otherwise.
"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.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
which is signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"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.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required by the provisions of such Section 11.5.
"Ordinary Course Lien" means any mortgage, pledge, security interest, lien
or encumbrance:
(a) for taxes, assessments or governmental charges or levies on
the property of the Issuer or any Restricted Subsidiary if the same shall not at
the time be delinquent or thereafter can be paid without penalty, or are being
contested in good faith by appropriate proceedings;
(b) 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) 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) in connection with utility easements, building restrictions
and such other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character and which
do not in any material way affect the marketability of the same or interfere
with the use thereof in the ordinary course of business of the Issuer and the
Restricted Subsidiaries;
(e) 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) 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) 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) on personal property (excluding the capital stock of any
Restricted Subsidiary) securing Indebtedness of the Issuer or any Restricted
Subsidiary other than Funded Indebtedness; and
(i) imposed by law or order as a result of any proceeding before
any court or regulatory body that is being contested in good faith, and Liens
which secure a judgment or other court-ordered award or settlement as to which
the Issuer has not exhausted its appellate rights.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions thereof,
for the payment or redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent),
provided that, if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and interest, if any, on the
Securities of such series are payable as determined in accordance with Section
2.3.
"principal" of a debt security, including any Security, means the amount
(including, without limitation, if and to the extent applicable, any premium
and, in the case of an Original Issue Discount Security, any accrued original
issue discount, but excluding interest) that is payable with respect to such
debt security as of any date and for any purpose (including, without limitation,
in connection with any sinking fund, if any, upon any redemption at the option
of the Issuer, upon any purchase or exchange at the option of the Issuer or the
holder of such debt security and upon any acceleration of the maturity of such
debt security).
"principal amount" of a debt security, including any Security, means the
principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture.
"Restricted Subsidiary" means (i) any Subsidiary of the Issuer which owns
or leases (as lessor or lessee) (A) any property owned or leased by the Issuer
or any Subsidiary, or any interest of the Issuer or any Subsidiary in property
which is considered by the Issuer to be capable of producing oil or gas or
minerals in commercial quantities or (B) any processing or manufacturing plant
or pipeline owned or leased by the Issuer or any Subsidiary except any
processing or manufacturing plant or pipeline, or portion thereof, which the
Board of Directors in its good faith judgment determines in a Board Resolution
is not material to the business of the Issuer and its Subsidiaries taken as a
whole, or (ii) any Subsidiary designated as a Restricted Subsidiary by the Board
of Directors.
"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.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a word
or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice or as otherwise provided
in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
_____________________, 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.
_____________________, as Trustee
By ________________________________
as Authenticating Agent
By _______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited, Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series and with all other unsecured and unsubordinated debt of the Issuer.
There shall be established in or pursuant to one or more Board Resolutions (and,
to the extent established pursuant to rather than set forth in a Board
Resolution, in an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record shall
be taken for the determination of Holders to whom any such interest is payable
or the method by which such rate or rates or date or dates shall be determined
or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series shall be
payable (if other than as provided in Section 3.2) and the office or agency for
the Securities of the series maintained by the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period or
periods within which, the price or prices (or the method by which such price or
prices shall be determined or both) at which, the form or method of payment
therefor if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve) Securities
of the series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a 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 or rates at which such original issue discount shall
accrete, if any, and the date or dates from or to which or period or periods
during which such original issue discount shall accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities of
such series shall be payable;
(17) if other than _____________________ is to act as Trustee for the
Securities of such series, the name and Corporate Trust Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such series are to be determined with
reference to an index, the manner in which such amounts shall be determined;
(19) the terms for conversion or exchange, if any, with respect to
the Securities of such series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
Any such Board Resolution or Officers' Certificate referred to above with
respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures and agreed to by the Trustee, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating the Securities of such series and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3)
and (4) below only at or before the time of the first request of the Issuer to
the Trustee to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or rates, if
any, and any other terms of Securities of such series shall be determined by an
Issuer Order or pursuant to such procedures, (d) if provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing and
(e) after the original issuance of the first Security of such series to be
issued, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities of such series were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case of an
offering that is not underwritten, certain terms of the Securities of such
series have been established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with this Indenture, and
when such other terms as are to be established pursuant to procedures set forth
in an Issuer Order shall have been established, all such terms will have been
duly authorized by the Issuer and will have been established in conformity with
the provisions of this Indenture;
(b) when the Securities of such series have been executed by the
Issuer and authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the purchasers thereof,
they will have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in accordance with their
respective terms, and will be entitled to the benefits of this Indenture; and
(c) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of such
series will not contravene any provision of applicable law or the articles of
incorporation or bylaws of the Issuer or any agreement or other instrument
binding upon the Issuer or any of its Subsidiaries that is material to the
Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's
knowledge after the inquiry indicated therein, any judgment, order or decree of
any governmental agency or any court having jurisdiction over the Issuer or any
Subsidiary of the Issuer, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the Issuer of its
obligations under the Securities, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, such Opinion of Counsel
shall also state that the Issuer has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Texas and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of any series under this Section 2.4 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance with this Section
2.4 and the Issuer Order with respect to such series, authenticate and deliver
one or more Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such series to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions, and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3 or, with respect to the Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest, if
any, shall be payable on the dates, established as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series, maturity date, interest rate, if any, and
original issue date in authorized denominations for a like aggregate principal
amount.
All Securities presented for registration of transfer shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by, the Holder or his attorney duly authorized in
writing.
At the option of the Holder thereof, Securities of any series (other than a
Global Security, except as set forth below) may be exchanged for a Security or
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed or (c) any Security if the Holder
thereof has exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such Security not
required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a part of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Securities of a series represented by
one or more Global Securities notifies the Issuer that it is unwilling or unable
to continue as Depositary for such Securities or if at any time the Depositary
for such Securities shall no longer be eligible under Section 2.4, the Issuer
shall appoint a successor Depositary with respect to such Securities. If a
successor Depositary for such Securities is not appointed by the Issuer within
90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that such
Securities be represented by one or more Global Securities shall no longer be
effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities
to or as directed by the Persons in whose names such Securities are so
registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate, if
any, and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
the Trustee or the Issuer or any such agent to indemnify and defend and to save
each of the Trustee and the Issuer and any such agent harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof and in
the case of mutilation or defacement, shall surrender the Security to the
Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of all cancelled
Securities in accordance with its standard procedures and shall deliver a
certificate of such disposition to the Issuer. If the Issuer or its agent shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on each of the Securities at the
place, at the respective times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of the
Securities are Outstanding, the Issuer will maintain in each Place of Payment,
an office or agency where the Securities may be presented for payment, an office
or agency where the Securities may be presented for registration of transfer and
for exchange as provided in this Indenture, and an office or agency where
notices and demands to or upon the Issuer in respect of the Securities or of
this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as registrar and
paying agent and as the agent upon whom notices and demands may be served with
respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall appoint
a paying agent other than the Trustee, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for
the payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and the
Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the principal
of, premium, if any, or interest, if any, on the Securities when the same shall
be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or before
each due date of the principal of or interest, if any, on the Securities, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal, premium, if any, or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of, premium, if any, or
interest, if any, on the Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will, on
or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
SECTION 3.6 Limitation on Liens. So long as any of the Securities are
Outstanding, the Issuer will not, and will not permit any Restricted Subsidiary
to, pledge, mortgage, hypothecate or grant a security interest in, or permit any
mortgage, pledge, security interest or other lien upon, any property or assets
owned by the Issuer or any Restricted Subsidiary to secure any Indebtedness,
without making effective provision whereby the Securities then Outstanding shall
(so long as such other Indebtedness shall be so secured) be equally and ratably
secured with any and all such other Indebtedness and any other indebtedness
similarly entitled to be equally and ratably secured; provided, however, that
this restriction shall not apply to nor prevent the creation or existence of:
(a) any mortgage, pledge, security interest, lien or encumbrance upon
any property or assets existing on the date on which the Securities are
originally issued or provided for under the terms of agreements existing on such
date;
(b) any mortgage, pledge, security interest, lien or encumbrance upon
any property or assets created at the time of the acquisition of such property
or assets by the Issuer or any Restricted Subsidiary or within one year after
such time to secure all or a portion of the purchase price for such property or
assets;
(c) any mortgage, pledge, security interest, lien or encumbrance upon
any property or assets existing thereon at the time of the acquisition thereof
by the Issuer or any Restricted Subsidiary (whether or not the obligations
secured thereby are assumed by the Issuer or any Subsidiary of the Issuer);
(d) any mortgage, pledge, security interest, lien or encumbrance upon
any property or assets, whenever acquired, of any corporation or other entity
that becomes a Restricted Subsidiary after the date hereof, provided that (i)
the instrument creating such mortgage, pledge, security interest, lien or
encumbrance shall be in effect prior to the time such corporation or other
entity becomes a Restricted Subsidiary and (ii) such mortgage, pledge, security
interest, lien or encumbrance shall only apply to properties or assets owned by
such corporation or other entity at the time it becomes a Restricted Subsidiary
or thereafter acquired by it from sources other than the Issuer or another
Restricted Subsidiary;
(e) any mortgage, pledge, security interest, lien or encumbrance
arising from or in connection with a conveyance by the Issuer or a Restricted
Subsidiary of any production payment with respect to oil, gas, natural gas,
carbon dioxide, sulphur, helium, coal, metals, minerals, steam, timber or other
natural resources;
(f) 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;
(g) any mortgage, pledge, security interest, lien or encumbrance 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 Issuer or any Restricted Subsidiary to
provide funds for the activities set forth in clauses (i) and (ii) above;
(h) any mortgage, pledge, security interest, lien or encumbrance
required by any contract or statute in order to permit the Issuer or any
Restricted Subsidiary to perform any contract or subcontract made by it with or
at the request of the United States or any State thereof or any foreign
government or any department, agency, organization or instrumentality thereof,
or to secure partial, progress, advance or other payments to the Issuer or any
Restricted Subsidiary by such governmental unit pursuant to the provisions of
any contract or statute;
(i) any mortgage, pledge, security interest, lien or encumbrance in
favor of the Issuer or any Restricted Subsidiary of the Issuer;
(j) any mortgage, pledge, security interest, lien or encumbrance
created or assumed by the Issuer or a Restricted Subsidiary in connection with
the issuance of debt securities the interest on which is excludable from gross
income of the holder of such security pursuant to the Internal Revenue Code of
1986, as amended, for the purpose of financing, in whole or in part, the
acquisition or construction of property or assets to be used by the Issuer or a
Subsidiary of the Issuer;
(k) any extension, renewal or refunding (and any successive
extensions, renewals or refundings) of any mortgage, pledge, security interest,
lien or encumbrance permitted by the foregoing subparagraphs (a) through (j)
above on substantially the same property or assets theretofore subject thereto;
or
(l) Ordinary Course Liens;
(m) any mortgage, pledge, security interest, lien or encumbrance resulting
from the deposit of moneys or evidence of indebtedness in trust for the purpose
of defeasing Indebtedness of the Issuer or any Subsidiary;
(n) 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; or
(o) the entering into of Currency Hedge Obligations, Interest Rate
Hedging Agreements or Oil and Gas Hedging Contracts although any mortgage,
pledge, security interest, lien or encumbrance 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 (n) above
In case the Issuer or any Restricted Subsidiary shall propose to pledge,
mortgage, hypothecate or grant a security interest in any property or assets
owned by the Issuer or any Restricted Subsidiary to secure any Indebtedness,
other than as permitted by subdivisions (a) to (j), inclusive, of this Section
3.6, the Issuer will prior thereto give written notice thereof to the Trustee,
and the Issuer will, or will cause such Restricted Subsidiary to, prior to or
simultaneously with such pledge, mortgage, hypothecation or grant of security
interest, by supplemental indenture executed to the Trustee (or to the extent
legally necessary to another trustee or additional or separate trustee), in form
satisfactory to the Trustee, effectively secure (for so long as such other
Indebtedness shall be so secured) all the Securities equally and ratably with
such Indebtedness and with any other indebtedness similarly entitled to be
equally and ratably secured. Such supplemental indenture shall contain the
provisions concerning the possession, control, release and substitution of
mortgaged and pledged property and securities and other appropriate matters
which are required by the Trust Indenture Act of 1939 (as in effect at the date
of execution of such supplemental indenture) to be included in a secured
indenture qualified under the Trust Indenture Act of 1939, and may also contain
such additional and amendatory provisions permitted by the Trust Indenture Act
of 1939 as the Issuer and the Trustee shall deem advisable or appropriate or as
the Trustee shall deem necessary in connection with such pledge, mortgage,
hypothecation or grant of security interest.
For the purpose of this Section 3.6, "security interest" shall include the
interest of the lessor under a lease with a term of three years or more that
should be, in accordance with generally accepted accounting principles, recorded
as a capital lease, and any such lease of property or assets not acquired from
the Issuer or any Restricted Subsidiary in contemplation of such lease shall be
treated as though the lessee had purchased such property or assets from the
lessor.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this Section
4.2, and as to the approximate cost of mailing to such Securityholders the form
of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.2 a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer with
the conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 4.4(c), such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections (a) and (b) of this
Section 4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act of 1939 with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default), unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
or pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities or in the form of Security, for such series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and when
such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series or in this Indenture continued for a period of 90 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given by certified or registered mail to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or without
the consent of the Issuer a court having jurisdiction shall enter a judgment,
order or decree adjudging the Issuer a bankrupt or insolvent, or enter an order
for relief for reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under any applicable bankruptcy, insolvency or other
similar law of the Cayman Islands, and the continuance of any such judgment,
order or decree is unstayed and in effect for a period of 90 consecutive days;
or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy, insolvency or
other similar law of the Cayman Islands, or for an adjudication of insolvency,
or shall consent to the institution of bankruptcy or insolvency proceedings
against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or shall
consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of substantially all of its property, or the Issuer shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration of
any applicable grace periods and the presentation of any debt instruments, if
required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $20,000,000, without each such 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 the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, a written notice
specifying each such default and requiring the Issuer to cause each such default
and acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Securities of such series
which shall have become due by acceleration, shall have been cured or shall have
been waived in accordance with Section 5.7 or provision deemed by the Trustee to
be adequate shall have been made therefor, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Issuer and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default specified in
Section 5.1(e) or 5.1(f) occurs with respect to the Issuer, all unpaid principal
amount (or, if the Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Securities of each
series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a), (b)
or (c), the Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Responsible Officer by
the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 60 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is 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 Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses or otherwise
pursuant to Section 6.6, including counsel fees and expenses incurred by it up
to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses and counsel fees and expenses out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the Holders of the
Securities of such series may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other expenses and liabilities incurred, and all advances made, by the
Trustee pursuant to Section 6.6 except as a result of its negligence or bad
faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if any, on
the Securities of such series, in the order of the maturity of the installments
of such interest, if any, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest, if
any, at the rate borne by the Securities of such series, such payment to be made
ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for principal
and interest, if any, with interest on the overdue principal and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest, if any, at the rate borne by the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of principal over
interest or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to receive
the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Securities to which it
relates, or which in any manner shall have been kept alive after maturity by an
extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the Holder of every Security of such series
with every other Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as to
any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of, premium,
if any, and interest, if any, on such Security, on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates shall not be impaired or
affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or 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 Issuer, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event
of Default hereunder shall have been waived as permitted by this Section 5.7,
said default or Event of Default shall for all purposes of the Securities and
this Indenture be deemed to have been cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities of any series then Outstanding,
or to any suit instituted by any Securityholders for the enforcement of the
payment of the principal of or interest, if any, on any Security against the
Issuer on or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
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 Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate or Issuer Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any advice
of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture
(including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable
for the use or application by the Issuer of any of the Securities or of the
proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities, and the Securities are
hereby subordinated to such senior claim. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 5.1
or in connection with Article Five hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for the
service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law. The provisions of this Section 6.6
shall survive the resignation or removal of the Trustee and the termination of
this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the Trust Indenture Act of 1939 regarding disqualification of a
trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any state or the District of
Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or any Affiliate of such obligor shall serve as
trustee upon the Securities. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
A different Trustee may be appointed by the Issuer for each series of
Securities prior to the issuance of such Securities. If the initial Trustee for
any series of Securities is to be a trustee other than _____________________,
the Issuer and such Trustee shall, prior to the issuance of such Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Securities of such series and
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Article Five, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 with respect to any series of Securities after written request therefor by
the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Article Five, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall give notice thereof to the Holders of Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any Authenticating
Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by or
on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or by any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three Business Days after such filing. Except as aforesaid, any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of the
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and any such Persons, shall be entitled to
waive any such past default, consent to any such supplemental indenture or waive
compliance with any such term, condition or provision, whether or not such
Holder remains a Holder after such record date; provided, however, that unless
such waiver or consent is obtained from the Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Securities of such series prior
to the date which is the 180th day after such record date, any such waiver or
consent previously given shall automatically and, without further action by any
Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to
be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series), and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall materially adversely
affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in coupon
form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities for the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(g) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act of 1939, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act of 1939, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act of 1939 as in effect at the date as of which this instrument was executed or
any corresponding provision provided for in any similar federal statute
hereafter enacted;
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than _____________________ as Trustee for a series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.9
hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer solely
in respect of, or add new covenants or Events of Default of the Issuer that
apply solely to, Securities not Outstanding on the date of such supplemental
indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities then Outstanding
of any series affected by such supplemental indenture, the Issuer, when
authorized by a Board Resolution (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), and
the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series; provided, that no such supplemental indenture shall (a) extend the
stated final maturity of the principal of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest, if
any, thereon (or, in the case of an Original Issue Discount Security, reduce the
rate of accretion of original issue discount thereon), or reduce or alter the
method of computation of any amount payable on redemption, repayment or purchase
by the Issuer thereof (or the time at which any such redemption, repayment or
purchase may be made), or make the principal thereof (including any amount in
respect of original issue discount), or interest, if any, thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms of the Securities, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy in each case pursuant to Article Five, or impair or affect the right
of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment or purchase at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under
this Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant, Event of
Default or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, with respect to
such covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may at its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the
execution and delivery of such supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may bear
a notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the Issuer, and such
Securities may be authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia
or the Cayman Islands or any political subdivision thereof; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any such
consolidation or merger or any sale, conveyance or lease of all or substantially
all of the property of the Issuer and upon the assumption by the successor
Person, by supplemental indenture executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest, if any, on all of the Securities
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, such successor Person shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the Issuer (including any
intervening successor to the Issuer which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture and
the Securities; provided, however, that in the case of a sale, lease, exchange
or other disposition of the property and assets of the Issuer (including any
such intervening successor), the Issuer (including any such intervening
successor) shall continue to be liable on its obligations under this Indenture
and the Securities to the extent, but only to the extent, of liability to pay
the principal of, premium, if any, and interest, if any, on the Securities at
the time, places and rate prescribed in this Indenture and the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Issuer, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
Issuer, such changes in phraseology and form (but not in substance) may be made
in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee, subject
to Sections 6.1 and 6.2, shall receive an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease,
exchange or other disposition and any such assumption complies with the
provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant Defeasance.
(A) If at any time (a) the Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all Securities theretofore authenticated (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer (including all amounts, payable to the Trustee pursuant to Section
6.6), then this Indenture shall cease to be of further effect, and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the
satisfaction and discharge contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction and discharging this Indenture. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and 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 Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities of
any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities with
respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or by their terms are to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities
of such series, cash in an amount (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or non-callable,
non-prepayable bonds, notes, bills or other similar obligations issued or
guaranteed by the United States government or any agency thereof the full and
timely payment of which are backed by the full faith and credit of the United
States ("U.S. Government Obligations"), maturing as to principal and interest,
if any, at such times and in such amounts as will insure the availability of
cash, or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal of, premium, if any, or interest, if any, is due and
payable, and (2) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series; then the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
date of the deposit referred to in clause (ii) above and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in
effect (except, in the case of clause (c) of this Section 10.1(B), as to (i)
rights of registration of transfer and exchange of Securities of such series,
(ii) rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (iii) rights of Holders of Securities of such series
to receive payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2 with respect to
Securities of such series) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(C) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series (i) cash in an amount, or
(ii) U.S. Government Obligations, maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer is a
party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y), since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm that,
the Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(D) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to the foregoing, in the case of any series of Securities with
respect to which the exact amount described in subparagraph (a) below can be
determined at the time of making the deposit referred to in such subparagraph
(a), the Issuer shall be deemed to be, and shall be, released from its
obligations under Section 3.6 hereof on the 91st day after the date of the
deposit referred to in subparagraph (a) below, and the Issuer's obligations
under all Securities of such series and this Indenture with respect to Section
3.6 hereof shall thereafter be deemed to be discharged for the purposes of any
direction, waiver, consent or declaration (and the consequences of any thereof)
in connection therewith but shall continue in full force and effect for all
other purposes hereunder, and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series (i) cash in an amount, or
(ii) U.S. Government Obligations, maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series; and
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer is a
party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of, premium, if any, or interest, if any,
on any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal, premium, if any, or interest, if
any, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.1 or the principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors and the Holders of the Securities, any legal
or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Triton Energy Limited, Caledonian House, Mary Street, P.O. Box 1043, George
Town, Grand Cayman, Cayman Islands, with a copy to Triton Energy Corporation,
6688 North Central Expressway, Suite 1400, Dallas, Texas 75206, attention Legal
Department. Any notice, direction, request or demand by the Issuer or any
Holder of Securities to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Trustee is filed by the Trustee with the Issuer) to
_____________________, _____________________, _____________________, Attention:
Corporate Trust Department.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than a
certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of principal of or interest, if any, on the Securities of any series
or the date fixed for redemption, purchase or repayment of any such Security
shall not be a Business Day, then payment of interest, if any, premium, if any,
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, or
is deemed applicable to this Indenture by virtue of the provisions of the Trust
Indenture Act of 1939, such required provision shall control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Submission to Jurisdiction. The Issuer hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and of the
courts of the United States of America having jurisdiction in the State of New
York for the purpose of any legal action or proceeding in any such court with
respect to, or arising out of, this Indenture or the Securities. The Issuer
designates and appoints Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: Robert B. Holland,
III and its successors as its lawful agent in the United States of America upon
which may be served, and which may accept and acknowledge, for and on behalf of
the Issuer all process in any action, suit or proceedings that may be brought
against the Issuer in any of the courts referred to in this Section, and agrees
that such service of process, or the acceptance or acknowledgment thereof by
said agent, shall be valid, effective and binding in every respect; provided
however, that if said agency shall cease for any reason whatsoever, the Issuer
hereby designates and appoints, without power of revocation, the Secretary of
State of the State of New York to serve as its agent for service of process.
Nothing contained in this Section 11.9 shall limit the right of the Holders of
the Securities or any of them to take proceedings against the Issuer in any
other court of competent jurisdiction no, by virtue of anything contained
herein, shall the taking of proceedings in one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest, if
any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount) thereon
or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing
of the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount), on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier date
shall be specified in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such series were established)
except as provided in Sections 6.5 and 10.4, to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the redemption price shall, until paid or duly provided
for, bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, and of like tenor, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series to be so credited has theretofore been so credited, (c) stating that
no defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured or otherwise ceased to
exist) and are continuing, and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before
any such 60th day, to deliver such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof, and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest, if
any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default known to a Responsible Officer of the Trustee
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 5.7
or the default cured on or before the 60th day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE THIRTEEN
ADDITIONAL AMOUNTS
SECTION 13.1 Additional Amounts. The Issuer hereby agrees that any amounts
to be paid by the Issuer hereunder with respect to any Security 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, the Issuer will (subject to
compliance by the Holder of such Security with any relevant administrative
requirements) pay such additional amounts ("Additional Amounts") in respect of
principal amount, premium (if any), and interest (if any), in accordance with
the terms of the Securities and this Indenture, as may be necessary in order
that the net amounts paid to such Holder or the Trustee, as the case may be,
after such deduction or withholding, shall equal the respective amounts of
principal amount, premium (if any), and interest (if any), in accordance with
the terms of the Securities and this Indenture, as specified in such Securities
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 Security (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 Security or the collection of principal
amount, premium (if any), and interest (if any), in accordance with the terms of
the Securities and this Indenture, or the enforcement of such Security or (B)
where presentation is required, such Security was presented more than 30 days
after the date such payment became due or was provided for, whichever is later;
(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), 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 Security, 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 Security 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 Security.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of _________ __, ________.
TRITON ENERGY LIMITED
By:
Title:
Attest:
By:
Title:
_____________________,
as Trustee
By:
Title:
Attest:
By:
Title:
EXHIBIT 4.3
TRITON ENERGY LIMITED
AND
,
AS TRUSTEE
FORM OF SENIOR SUBORDINATED INDENTURE
DATED AS OF _________ __, _______
CROSS REFERENCE SHEET*
___________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
___________ __, _______ between TRITON ENERGY LIMITED and _____________________,
Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
- --------------------- ----------------------
310(a)(1), (2) and (5) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10(a), (b) and (d)
310(c) Inapplicable
311(a) 6.13
311(b) 6.13
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)(i) and (ii)
312(c) 4.2(c)
313(a) 4.4(a)(i),(ii),(iii),(iv),(v),(vi) and (vii)
313(a)(5) Inapplicable
313(b)(1) Inapplicable
313(b)(2) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.8
315(e) 5.9
316(a)(1) 5.7
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.4
317(a) 5.2
317(b) 3.5(a)
318(a) 11.7
318(a)
_____________________
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE ONE
DEFINITIONS
Additional Amounts
Affiliate
Authenticating Agent
Bankruptcy Code
Board of Directors
Board Resolution
Business Day
Commission
Consolidated Net Tangible Assets
Corporate Trust Office
Depositary
Dollars
$
Exchange Act
Event of Default
Global Security
Holder
Holder of Securities
Securityholder
Indebtedness
Indenture
interest
Issuer
Issuer Order
Officers' Certificate
Opinion of Counsel
original issue date
original issue discount
Original Issue Discount Security
Outstanding
Periodic Offering
Person
Place of Payment
principal
principal amount
record date
Responsible Officer
Securities Act
Security
Securities
Senior Indebtedness
Senior Subordinated Indebtedness
Subordinated Indebtedness
Subsidiary
Trust Indenture Act of 1939
Trustee
Unrestricted Subsidiary
U.S. Government Obligations
vice president
Yield to Maturity
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally
SECTION 2.2 Form of Trustee's Certificate of Authentication
SECTION 2.3 Amount Unlimited, Issuable in Series
SECTION 2.4 Authentication and Delivery of Securities
SECTION 2.5 Execution of Securities
SECTION 2.6 Certificate of Authentication
SECTION 2.7 Denomination and Date of Securities; Payments of Interest
SECTION 2.8 Registration, Transfer and Exchange
SECTION 2.10 Cancellation of Securities; Disposition Thereof
SECTION 2.11 Temporary Securities .
SECTION 2.12 CUSIP Numbers
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest
SECTION 3.2 Offices for Notices and Payments, etc .
SECTION 3.3 No Interest Extension
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office
SECTION 3.5 Provision as to Paying Agent
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists
SECTION 4.3 Reports by the Issuer
SECTION 4.4 Reports by the Trustee
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default
SECTION 5.2 Payment of Securities on Default; Suit Therefor
SECTION 5.3 Application of Moneys Collected by Trustee
SECTION 5.4 Proceedings by Securityholders
SECTION 5.5 Proceedings by Trustee
SECTION 5.6 Remedies Cumulative and Continuing
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders
SECTION 5.8 Notice of Defaults
SECTION 5.9 Undertaking to Pay Costs
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default
SECTION 6.2 Certain Rights of the Trustee
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds
Thereof
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc
SECTION 6.5 Moneys Held by Trustee .
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc.
SECTION 6.8 Qualification of Trustee; Conflicting Interests
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee
SECTION 6.11 Acceptance of Appointment by Successor Trustee
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee
SECTION 6.13 Preferential Collection of Claims Against the
Issuer
SECTION 6.14 Appointment of Authenticating Agent
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities
SECTION 7.3 Holders to be Treated as Owners
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding
SECTION 7.5 Right of Revocation of Action Taken
SECTION 7.6 Record Date for Consents and Waivers
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders
SECTION 8.3 Effect of Supplemental Indenture
SECTION 8.4 Documents to Be Given to Trustee
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms
SECTION 9.2 Successor Corporation to be Substituted
SECTION 9.3 Opinion of Counsel to be Given Trustee
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities
SECTION 10.3 Repayment of Moneys Held by Paying Agent
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years
SECTION 10.5 Indemnity for U.S. Government Obligations
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939
SECTION 11.8 GOVERNING LAW
SECTION 11.9 Submission to Jurisdiction
SECTION 11.10 Counterparts
SECTION 11.11 Effect of Headings
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article
SECTION 12.2 Notice of Redemption; Partial Redemptions
SECTION 12.3 Payment of Securities Called for Redemption
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption
SECTION 12.5 Mandatory and Optional Sinking Funds
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further Evidence
as to Ownership of Senior Indebtedness
SECTION 13.3 Payment Permitted If No Default
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition
SECTION 13.6 Trustee to Effectuate Subordination
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness
SECTION 13.8 Article Applicable to Paying Agents
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the
Issuer or Holders of Senior Indebtedness
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness
ARTICLE FOURTEEN
ADDITIONAL AMOUNTS
SECTION 14.1 Additional Amounts
FORM OF SENIOR SUBORDINATED INDENTURE
THIS SENIOR SUBORDINATED INDENTURE, dated as of _________ __, _______
between TRITON ENERGY LIMITED, a Cayman Islands company (the "Issuer"), and
_____________________, , a _____________________, as trustee (the "Trustee").
W I T N E S S E T H :
---------------------
WHEREAS, the Issuer has duly authorized the issuance from time to time of
its unsecured senior subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has 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 Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided herein or in any indenture supplemental hereto or
unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted on the date of this Indenture.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz. as
of _________ __, _______.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Additional Amounts" has the meaning set forth in Section 14.1.
"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 Sections 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless otherwise
specified in a Board Resolution and an Officers' Certificate with respect to a
particular series of Securities, a day that (a) in the Place of Payment (or in
any of the Places of Payment, if more than one) in which amounts are payable, as
specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions
are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and, if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in Section
5.1.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to the Depositary for such series in accordance with Section
2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean, in the case of any Security, the Person in whose name such Security is
registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if any,
on indebtedness for money borrowed of such Person, indebtedness of such Person
evidenced by bonds, notes, debentures or similar obligations, and any guaranty
by such Person of any indebtedness for money borrowed or indebtedness evidenced
by bonds, notes, debentures or similar obligations of any other Person, whether
any such indebtedness or guaranty is outstanding on the date of this Indenture
or is thereafter created, assumed or incurred, (ii) obligations of such Person
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (iii) the principal of and premium, if
any, and interest, if any, on indebtedness incurred, assumed or guaranteed by
such Person in connection with the acquisition by it or any of its subsidiaries
of any other businesses, properties or other assets; (iv) lease obligations
which such Person capitalized in accordance with Statement of Financial
Accounting Standards No. 13 promulgated by the Financial Accounting Standards
Board or such other generally accepted accounting principles as may be from time
to time in effect; (v) any indebtedness of such Person representing the balance
deferred and unpaid of the purchase price of any property or interest therein
(except any such balance that constitutes an accrued expense or trade payable)
and any guaranty, endorsement or other contingent obligation of such Person in
respect of any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person; and (vi)
obligations of such Person under interest rate, commodity or currency swaps,
caps, collars, options and similar arrangements if and to the extent that any of
the foregoing indebtedness in (i) through (vi) would appear as a liability on
the balance sheet of such Person in accordance with generally accepted
accounting principles; and
(b) any amendments, modifications, refundings, renewals or extensions
of any indebtedness or obligation described as Indebtedness in clause (a) above.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing Securities
(including, without limitation, any Original Issue Discount Security that by its
terms bears interest only after maturity or upon default in any other payment
due on such Security), interest payable after maturity (whether at stated
maturity, upon acceleration or redemption or otherwise) or after the date, if
any, on which the Issuer becomes obligated to acquire a Security, whether upon
conversion, by purchase or otherwise.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
which is signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required by the provisions of such Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions thereof,
for the payment or redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent),
provided that, if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and interest, if any, on the
Securities of such series are payable as determined in accordance with Section
2.3.
"principal" of a debt security, including any Security, means the amount
(including, without limitation, if and to the extent applicable, any premium
and, in the case of an Original Issue Discount Security, any accrued original
issue discount, but excluding interest) that is payable with respect to such
debt security as of any date and for any purpose (including, without limitation,
in connection with any sinking fund, if any, upon any redemption at the option
of the Issuer, upon any purchase or exchange at the option of the Issuer or the
holder of such debt security and upon any acceleration of the maturity of such
debt security).
"principal amount" of a debt security, including any Security, means the
principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture.
"Restricted Subsidiary" means (i) any Subsidiary of the Issuer which owns
or leases (as lessor or lessee) (A) any property owned or leased by the Issuer
or any Subsidiary, or any interest of the Issuer or any Subsidiary in property
which is considered by the Issuer to be capable of producing oil or gas or
minerals in commercial quantities or (B) any processing or manufacturing plant
or pipeline owned or leased by the Issuer or any Subsidiary except any
processing or manufacturing plant or pipeline, or portion thereof, which the
Board of Directors in its good faith judgment determines in a Board Resolution
is not material to the business of the Issuer and its Subsidiaries taken as a
whole, or (ii) any Subsidiary designated as a Restricted Subsidiary by the Board
of Directors.
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture or, as the case may be, Securities that have been authenticated
and delivered pursuant to this Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at any
time (other than the Indebtedness evidenced by the Securities of any series)
except (a) any Indebtedness as to which, by the terms of the instrument creating
or evidencing such Indebtedness, it is provided that such Indebtedness is not
senior or prior in right of payment to the Securities or is pari passu or
subordinate by its terms in right of payment to the Securities, (b) renewals,
extensions and modifications of any such Indebtedness, (c) any Indebtedness of
the Issuer to a wholly-owned Subsidiary of the Issuer, (d) interest accruing
after the filing of a petition initiating any proceeding referred to in Sections
5.1(e) and 5.1(f) unless such interest is an allowed claim enforceable against
the Issuer in a proceeding under federal or state bankruptcy laws and (e) trade
payables.
"Senior Subordinated Indebtedness" means the Securities and any other
Indebtedness of the Issuer that ranks pari passu with the Securities. Any
Indebtedness of the Issuer that is subordinate or junior by its terms in right
of payment to any other Indebtedness of the Issuer shall be subordinate to
Senior Subordinated Indebtedness unless the instrument creating or evidencing
the same or pursuant to which the same is outstanding specifically provides that
such Indebtedness (i) is to rank pari passu with other Senior Subordinated
Indebtedness and (ii) is not subordinated by its terms to any Indebtedness of
the Issuer which is not Senior Indebtedness.
"Subordinated Indebtedness" means the Securities, any other Senior
Subordinated Indebtedness and any other Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness.
"Subsidiary" of any specified Person means any corporation of which such
Person, or such Person and one or more Subsidiaries of such Person, or any one
or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections 8.1
and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is then
a trustee hereunder and, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer acquired
or organized after the date hereof, provided, however, that such Subsidiary
shall not be a successor, directly or indirectly, to any Restricted Subsidiary,
and (b) any Subsidiary of the Issuer substantially all the assets of which
consist of stock or other securities of a Subsidiary or Subsidiaries of the
character described in clause (a) of this paragraph, unless and until such
Subsidiary shall have been designated to be a Restricted Subsidiary pursuant to
clause (b) of the definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a word
or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice or as otherwise provided
in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
_____________________, 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.
_____________________, as Trustee
By ________________________________
as Authenticating Agent
By _______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited, Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness of the Issuer. There shall be established
in or pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record shall
be taken for the determination of Holders to whom any such interest is payable
or the method by which such rate or rates or date or dates shall be determined
or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series shall be
payable (if other than as provided in Section 3.2) and the office or agency for
the Securities of the series maintained by the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period or
periods within which, the price or prices (or the method by which such price or
prices shall be determined or both) at which, the form or method of payment
therefor if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve) Securities
of the series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a 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 or rates at which such original issue discount shall
accrete, if any, and the date or dates from or to which or period or periods
during which such original issue discount shall accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities of
such series shall be payable;
(17) if other than _____________________, is to act as Trustee for
the Securities of such series, the name and Corporate Trust Office of such
Trustee;
(18) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such series are to be determined with
reference to an index, the manner in which such amounts shall be determined;
(19) the terms for conversion or exchange, if any, with respect to the
Securities of such series; and
(20) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
Any such Board Resolution or Officers' Certificate referred to above with
respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures and agreed to by the Trustee, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating the Securities of such series and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3)
and (4) below only at or before the time of the first request of the Issuer to
the Trustee to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or rates, if
any, and any other terms of Securities of such series shall be determined by an
Issuer Order or pursuant to such procedures, (d) if provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing and
(e) after the original issuance of the first Security of such series to be
issued, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities of such series were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case of an
offering that is not underwritten, certain terms of the Securities of such
series have been established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with this Indenture, and
when such other terms as are to be established pursuant to procedures set forth
in an Issuer Order shall have been established, all such terms will have been
duly authorized by the Issuer and will have been established in conformity with
the provisions of this Indenture;
(b) when the Securities of such series have been executed by the
Issuer and authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the purchasers thereof,
they will have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in accordance with their
respective terms, and will be entitled to the benefits of this Indenture; and
(c) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of such
series will not contravene any provision of applicable law or the articles of
incorporation or bylaws of the Issuer or any agreement or other instrument
binding upon the Issuer or any of its Subsidiaries that is material to the
Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's
knowledge after the inquiry indicated therein, any judgment, order or decree of
any governmental agency or any court having jurisdiction over the Issuer or any
Subsidiary of the Issuer, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the Issuer of its
obligations under the Securities, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, such Opinion of Counsel
shall also state that the Issuer has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Texas and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of any series under this Section 2.4 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance with this Section
2.4 and the Issuer Order with respect to such series, authenticate and deliver
one or more Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such series to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions, and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3 or, with respect to the Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest, if
any, shall be payable on the dates, established as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series, maturity date, interest rate, if any, and
original issue date in authorized denominations for a like aggregate principal
amount.
All Securities presented for registration of transfer shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by, the Holder or his attorney duly authorized in
writing.
At the option of the Holder thereof, Securities of any series (other than a
Global Security, except as set forth below) may be exchanged for a Security or
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed or (c) any Security if the Holder
thereof has exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such Security not
required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a part of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Securities of a series represented by
one or more Global Securities notifies the Issuer that it is unwilling or unable
to continue as Depositary for such Securities or if at any time the Depositary
for such Securities shall no longer be eligible under Section 2.4, the Issuer
shall appoint a successor Depositary with respect to such Securities. If a
successor Depositary for such Securities is not appointed by the Issuer within
90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that such
Securities be represented by one or more Global Securities shall no longer be
effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities
to or as directed by the Persons in whose names such Securities are so
registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate, if
any, and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
the Trustee or the Issuer or any such agent to indemnify and defend and to save
each of the Trustee and the Issuer and any such agent harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof and in
the case of mutilation or defacement, shall surrender the Security to the
Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of all cancelled
Securities in accordance with its standard procedures and shall deliver a
certificate of such disposition to the Issuer. If the Issuer or its agent shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on each of the Securities at the
place, at the respective times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of the
Securities are Outstanding, the Issuer will maintain in each Place of Payment,
an office or agency where the Securities may be presented for payment, an office
or agency where the Securities may be presented for registration of transfer and
for exchange as provided in this Indenture, and an office or agency where
notices and demands to or upon the Issuer in respect of the Securities or of
this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as registrar and
paying agent and as the agent upon whom notices and demands may be served with
respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall appoint
a paying agent other than the Trustee, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for
the payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and the
Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the principal
of, premium, if any, or interest, if any, on the Securities when the same shall
be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or before
each due date of the principal of or interest, if any, on the Securities, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal, premium, if any, or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of, premium, if any, or
interest, if any, on the Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will, on
or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this Section
4.2, and as to the approximate cost of mailing to such Securityholders the form
of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.2 a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer with
the conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 4.4(c), such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections (a) and (b) of this
Section 4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act of 1939 with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or otherwise), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and when
such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series or in this Indenture continued for a period of 90 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given by certified or registered mail to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or without
the consent of the Issuer a court having jurisdiction shall enter a judgment,
order or decree adjudging the Issuer a bankrupt or insolvent, or enter an order
for relief for reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under any applicable bankruptcy, insolvency or other
similar law of the Cayman Islands, and the continuance of any such judgment,
order or decree is unstayed and in effect for a period of 90 consecutive days;
or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy, insolvency or
other similar law of the Cayman Islands, or for an adjudication of insolvency,
or shall consent to the institution of bankruptcy or insolvency proceedings
against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or shall
consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of substantially all of its property, or the Issuer shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration of
any applicable grace periods and the presentation of any debt instruments, if
required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $20,000,000, without each such 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 the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, a written notice
specifying each such default and requiring the Issuer to cause each such default
and acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Securities of such series
which shall have become due by acceleration, shall have been cured or shall have
been waived in accordance with Section 5.7 or provision deemed by the Trustee to
be adequate shall have been made therefor, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Issuer and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default specified in
Section 5.1(e) or 5.1(f) occurs with respect to the Issuer, all unpaid principal
amount (or, if the Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Securities of each
series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a), (b)
or (c), the Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Responsible Officer by
the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 60 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is 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 Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses or otherwise
pursuant to Section 6.6, including counsel fees and expenses incurred by it up
to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses and counsel fees and expenses out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the Holders of the
Securities of such series may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other expenses and liabilities incurred, and all advances made, by the
Trustee pursuant to Section 6.6 except as a result of its negligence or bad
faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if any, on
the Securities of such series, in the order of the maturity of the installments
of such interest, if any, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest, if
any, at the rate borne by the Securities of such series, such payment to be made
ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for principal
and interest, if any, with interest on the overdue principal and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest, if any, at the rate borne by the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of principal over
interest or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to receive
the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Securities to which it
relates, or which in any manner shall have been kept alive after maturity by an
extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the Holder of every Security of such series
with every other Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as to
any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Thirteen, 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 Issuer, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event
of Default hereunder shall have been waived as permitted by this Section 5.7,
said default or Event of Default shall for all purposes of the Securities and
this Indenture be deemed to have been cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities of any series then Outstanding,
or to any suit instituted by any Securityholders for the enforcement of the
payment of the principal of or interest, if any, on any Security against the
Issuer on or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
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 Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate or Issuer Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any advice
of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture
(including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable
for the use or application by the Issuer of any of the Securities or of the
proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee and shall not be
subordinate to the payment of Senior Indebtedness pursuant to Article Thirteen.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities, and
the Securities are hereby subordinated to such senior claim. When the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1 or in connection with Article Five hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law. The provisions of this Section 6.6
shall survive the resignation or removal of the Trustee and the termination of
this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the Trust Indenture Act of 1939 regarding disqualification of a
trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any state or the District of
Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or any Affiliate of such obligor shall serve as
trustee upon the Securities. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
A different Trustee may be appointed by the Issuer for each series of
Securities prior to the issuance of such Securities. If the initial Trustee for
any series of Securities is to be a trustee other than _____________________,
the Issuer and such Trustee shall, prior to the issuance of such Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Securities of such series and
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Article Five, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 with respect to any series of Securities after written request therefor by
the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Article Five, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall give notice thereof to the Holders of Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any Authenticating
Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by or
on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or by any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three Business Days after such filing. Except as aforesaid, any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of the
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and any such Persons, shall be entitled to
waive any such past default, consent to any such supplemental indenture or waive
compliance with any such term, condition or provision, whether or not such
Holder remains a Holder after such record date; provided, however, that unless
such waiver or consent is obtained from the Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Securities of such series prior
to the date which is the 180th day after such record date, any such waiver or
consent previously given shall automatically and, without further action by any
Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to
be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series), and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall materially adversely
affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in coupon
form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities for the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(g) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act of 1939, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act of 1939, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act of 1939 as in effect at the date as of which this instrument was executed or
any corresponding provision provided for in any similar federal statute
hereafter enacted;
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than _____________________, as Trustee for a series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.9
hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer solely
in respect of, or add new covenants or Events of Default of the Issuer that
apply solely to, Securities not Outstanding on the date of such supplemental
indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities then Outstanding
of any series affected by such supplemental indenture, the Issuer, when
authorized by a Board Resolution (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), and
the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series; provided, that no such supplemental indenture shall (a) extend the
stated final maturity of the principal of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest, if
any, thereon (or, in the case of an Original Issue Discount Security, reduce the
rate of accretion of original issue discount thereon), or reduce or alter the
method of computation of any amount payable on redemption, repayment or purchase
by the Issuer thereof (or the time at which any such redemption, repayment or
purchase may be made), or make the principal thereof (including any amount in
respect of original issue discount), or interest, if any, thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms of the Securities, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy in each case pursuant to Article Five, or impair or affect the right
of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment or purchase at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under
this Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant, Event of
Default or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, with respect to
such covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may at its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the
execution and delivery of such supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may bear
a notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the Issuer, and such
Securities may be authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia
or the Cayman Islands or any political subdivision thereof; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any such
consolidation or merger or any sale, conveyance or lease of all or substantially
all of the property of the Issuer and upon the assumption by the successor
Person, by supplemental indenture executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest, if any, on all of the Securities
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, such successor Person shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the Issuer (including any
intervening successor to the Issuer which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture and
the Securities; provided, however, that in the case of a sale, lease, exchange
or other disposition of the property and assets of the Issuer (including any
such intervening successor), the Issuer (including any such intervening
successor) shall continue to be liable on its obligations under this Indenture
and the Securities to the extent, but only to the extent, of liability to pay
the principal of, premium, if any, and interest, if any, on the Securities at
the time, places and rate prescribed in this Indenture and the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Issuer, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
Issuer, such changes in phraseology and form (but not in substance) may be made
in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee, subject
to Sections 6.1 and 6.2, shall receive an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease,
exchange or other disposition and any such assumption complies with the
provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant Defeasance.
(A) If at any time (a) the Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all Securities theretofore authenticated (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer (including all amounts, payable to the Trustee pursuant to Section
6.6), then this Indenture shall cease to be of further effect, and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the
satisfaction and discharge contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction and discharging this Indenture. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and 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 Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities of
any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities with
respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or by their terms are to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities
of such series, cash in an amount (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or non-callable,
non-prepayable bonds, notes, bills or other similar obligations issued or
guaranteed by the United States government or any agency thereof the full and
timely payment of which are backed by the full faith and credit of the United
States ("U.S. Government Obligations"), maturing as to principal and interest,
if any, at such times and in such amounts as will insure the availability of
cash, or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal of, premium, if any, or interest, if any, is due and
payable, and (2) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series; then the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
date of the deposit referred to in clause (ii) above and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in
effect (except, in the case of clause (c) of this Section 10.1(B), as to (i)
rights of registration of transfer and exchange of Securities of such series,
(ii) rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (iii) rights of Holders of Securities of such series
to receive payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2 with respect to
Securities of such series) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(C) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series (i) cash in an amount, or
(ii) U.S. Government Obligations, maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer is a
party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y), since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm that,
the Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of, premium, if any, or interest, if any,
on any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal, premium, if any, or interest, if
any, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.1 or the principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors and the Holders of the Senior Indebtedness
and the Holders of the Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Triton Energy Limited, Caledonian House, Mary Street, P.O. Box 1043, George
Town, Grand Cayman, Cayman Islands, with a copy to Triton Energy Corporation,
6688 North Central Expressway, Suite 1400, Dallas, Texas 75206, attention Legal
Department. Any notice, direction, request or demand by the Issuer or any
Holder of Securities to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Trustee is filed by the Trustee with the Issuer) to
_____________________, _____________________, _____________________, Attention:
Corporate Trust Department.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than a
certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of principal of or interest, if any, on the Securities of any series
or the date fixed for redemption, purchase or repayment of any such Security
shall not be a Business Day, then payment of interest, if any, premium, if any,
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, or
is deemed applicable to this Indenture by virtue of the provisions of the Trust
Indenture Act of 1939, such required provision shall control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Submission to Jurisdiction. The Issuer hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and of the
courts of the United States of America having jurisdiction in the State of New
York for the purpose of any legal action or proceeding in any such court with
respect to, or arising out of, this Indenture or the Securities. The Issuer
designates and appoints Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: Robert B. Holland,
III and its successors as its lawful agent in the United States of America upon
which may be served, and which may accept and acknowledge, for and on behalf of
the Issuer all process in any action, suit or proceedings that may be brought
against the Issuer in any of the courts referred to in this Section, and agrees
that such service of process, or the acceptance or acknowledgment thereof by
said agent, shall be valid, effective and binding in every respect; provided
however, that if said agency shall cease for any reason whatsoever, the Issuer
hereby designates and appoints, without power of revocation, the Secretary of
State of the State of New York to serve as its agent for service of process.
Nothing contained in this Section 11.9 shall limit the right of the Holders of
the Securities or any of them to take proceedings against the Issuer in any
other court of competent jurisdiction no, by virtue of anything contained
herein, shall the taking of proceedings in one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest, if
any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount) thereon
or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing
of the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount), on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier date
shall be specified in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such series were established)
except as provided in Sections 6.5 and 10.4, to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the redemption price shall, until paid or duly provided
for, bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, and of like tenor, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series to be so credited has theretofore been so credited, (c) stating that
no defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured or otherwise ceased to
exist) and are continuing, and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before
any such 60th day, to deliver such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof, and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest, if
any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, and subject to Article Thirteen, 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.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. (a) The
Issuer covenants and agrees, and each Holder of Securities of each series, by
his acceptance thereof, likewise covenants and agrees, that anything in this
Indenture or the Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each series is subordinate and
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness but the Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Issuer. The Securities shall rank senior to all existing and future
Indebtedness of the Issuer that is neither Senior Indebtedness nor Senior
Subordinated Indebtedness and only Indebtedness of the Issuer that is Senior
Indebtedness shall rank senior to the Securities in accordance with the
provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the
payment of any principal of, premium, if any, or interest, if any, on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, or
(ii) any other default shall occur with respect to Senior Indebtedness and the
maturity of such Senior Indebtedness has been accelerated in accordance with its
terms, then, upon written notice of such default to the Issuer and the Trustee
by the holders of Senior Indebtedness or any trustee therefor, unless and until,
in either case, the default has been cured or waived, or has ceased to exist, or
any such acceleration has been rescinded or such Senior Indebtedness has been
paid in full, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest, if any, on any of the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities other than those made in capital stock of the Issuer (or cash
in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of
this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods occurs (a "Senior Nonmonetary
Default"), then, upon the receipt by the Issuer and the Trustee of written
notice thereof (a "Payment Notice") from or on behalf of holders of such Senior
Indebtedness specifying an election to prohibit such payment and other action by
the Issuer in accordance with the following provisions of this paragraph (c),
the Issuer may not make any payment or take any other action that would be
prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment
Blockage Period") commencing on the date of receipt of such Payment Notice and
ending on the earlier of (i) the date, if any, on which the holders of such
Senior Indebtedness or their representative notify the Trustee that such Senior
Nonmonetary Default is cured or waived or ceases to exist or the Senior
Indebtedness to which such Senior Nonmonetary Default relates is discharged or
(ii) the 179th day after the date of receipt of such Payment Notice.
Notwithstanding the provisions described in the immediately preceding sentence,
the Issuer may resume payments on the Securities following such Payment Blockage
Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator,
liquidator or trustee of the Issuer or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or (D) a petition is filed against the Issuer under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect (including without limitation the Bankruptcy Code),
and is not dismissed within 60 days after such filing; or (ii) the Issuer (A)
commences a voluntary case or other proceeding seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debt or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or (C)
fails generally to, or cannot, pay its debts generally as they become due or (D)
takes any corporate action to authorize or effect any of the foregoing; or (iii)
any Subsidiary of the Issuer takes, suffers or permits to exist any of the
events or conditions referred to in the foregoing clause (i) or (ii), then all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or adjustment) which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall have been paid in full.
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Issuer ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the Issuer
the amounts at the time due and owing on account of unpaid principal of and
interest, if any, on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than securities
of the Issuer or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), shall be received by the Trustee or any
Holder in contravention of any of the terms hereof, such payment or distribution
of securities shall be received in trust for the benefit of and shall be paid
over or delivered and transferred to the holders of the Senior Indebtedness then
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all such Senior Indebtedness in full. In the event
of the failure of the Trustee or any Holder to endorse or assign any such
payment, distribution or security, each holder of such Senior Indebtedness is
hereby irrevocably authorized to endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Issuer or any
Holder of Securities. Nothing contained herein shall impair, as between the
Issuer and the Holders of Securities of each series, the obligation of the
Issuer to pay to such Holders the principal of and interest, if any, on such
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to remove cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior Indebtedness,
and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the bankruptcy trustee, receiver, assignee for the benefit of creditors or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of Senior Indebtedness (or is such a trustee or representative). If the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distributions pursuant to this Article Thirteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, as to the extent to which such Person is entitled to participate in such
payment or distribution, and to other facts pertinent to the rights of such
Person under this Article Thirteen, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained in this
Article Thirteen or elsewhere in this Indenture, or in any of the Securities,
shall prevent (a) the Issuer at any time, except during the pendency of any
default with respect to Senior Indebtedness described in Section 13.1(b) or
Section 13.1(c) or of any of the events described in Section 13.1(d), from
making payments of the principal of or interest, if any, on the Securities, or
(b) the application by the Trustee or any paying agent of any moneys deposited
with it hereunder to payments of the principal of or interest, if any, on the
Securities, if, at the time of such deposit, the Trustee or such paying agent,
as the case may be, did not have the written notice provided for in Section 13.5
of any event prohibiting the making of such deposit, or if, at the time of such
deposit (whether or not in trust) by the Issuer with the Trustee or paying agent
(other than the Issuer) such payment would not have been prohibited by the
provisions of this Article Thirteen, and the Trustee or any paying agent shall
not be affected by any notice to the contrary received by it on or after such
date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness. Any
failure by the Issuer to make any payment on or under any Senior Indebtedness,
other than any Senior Indebtedness as to which the provisions of this Section
13.4 shall have been waived by the Issuer in the instrument or instruments by
which the Issuer incurred, assumed, guaranteed or otherwise created such Senior
Indebtedness, shall not be deemed a default under Section 13.1 hereof if (i) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, or (B) if a judgment that is subject to further review or appeal has
been issued, the Issuer shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained pending
such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition. Anything
in this Article Thirteen or elsewhere in this Indenture contained to the
contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses (b)
and (c) of Section 13.1 has happened unless and until the Trustee shall have
received an Officers' Certificate to the effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or the representatives,
of Senior Indebtedness who shall have been certified by the Issuer or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided, however, that, if
the Trustee shall not have received the Officers' Certificate or notice provided
for in this Section 13.5 at least three Business Days preceding the date upon
which by the terms hereof any moneys become payable for any purpose (including,
without limitation, the payment of either the principal of or interest, if any,
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and apply the same to the purpose for which they were received and shall
not be affected by any notice to the contrary that may be received by it within
three Business Days preceding such date. The Issuer shall give prompt written
notice to the Trustee and to each paying agent of any facts that would prohibit
any payment of moneys to or by the Trustee or any paying agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Thirteen shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any time any
paying agent other than the Trustee shall have been appointed by the Issuer and
be then acting hereunder, the term "Trustee" as used in this Article Thirteen
shall in such case (unless the context shall otherwise require) be construed as
extending to and including such paying agent within its meaning as fully for all
intents and purposes as if the paying agent were named in this Article Thirteen
in addition to or in place of the Trustee; provided, however, that Sections 13.5
and 13.7 shall not apply to the Issuer if it acts as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the
Issuer or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
Senior Indebtedness, may at any time or from time to time and in their absolute
direction, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under such Senior
Indebtedness, including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Issuer, the Trustee or the
Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute money or assets to Securityholders or the
Issuer. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
ARTICLE FOURTEEN
ADDITIONAL AMOUNTS
SECTION 14.1 Additional Amounts. The Issuer hereby agrees that any amounts
to be paid by the Issuer hereunder with respect to any Security 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, the Issuer will (subject to
compliance by the Holder of such Security with any relevant administrative
requirements) pay such additional amounts ("Additional Amounts") in respect of
principal amount, premium (if any), and interest (if any), in accordance with
the terms of the Securities and this Indenture, as may be necessary in order
that the net amounts paid to such Holder or the Trustee, as the case may be,
after such deduction or withholding, shall equal the respective amounts of
principal amount, premium (if any), and interest (if any), in accordance with
the terms of the Securities and this Indenture, as specified in such Securities
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 Security (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 Security or the collection of principal
amount, premium (if any), and interest (if any), in accordance with the terms of
the Securities and this Indenture, or the enforcement of such Security or (B)
where presentation is required, such Security was presented more than 30 days
after the date such payment became due or was provided for, whichever is later;
(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), 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 Security, 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 Security 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 Security.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of _________ __, ________.
TRITON ENERGY LIMITED
By:
Title:
Attest:
By:
Title:
_____________________,
as Trustee
By:
Title:
Attest:
By:
Title:
EXHIBIT 4. 4
TRITON ENERGY LIMITED
AND
AS TRUSTEE
FORM OF SUBORDINATED INDENTURE
DATED AS OF _________ __, _______
CROSS REFERENCE SHEET*
___________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
___________ __, _______ between TRITON ENERGY LIMITED and
______________________, Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
- --------------------- ----------------------
310(a)(1), (2) and (5) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10(a), (b) and (d)
310(c) Inapplicable
311(a) 6.13
311(b) 6.13
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)(i) and (ii)
312(c) 4.2(c)
313(a) 4.4(a)(i),(ii),(iii),(iv),(v),(vi) and (vii)
313(a)(5) Inapplicable
313(b)(1) Inapplicable
313(b)(2) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.8
315(e) 5.9
316(a)(1) 5.7
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.4
317(a) 5.2
317(b) 3.5(a)
318(a) 11.7
_____________________
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE ONE
DEFINITIONS
Additional Amounts
Affiliate
Authenticating Agent
Bankruptcy Code
Board of Directors
Board Resolution
Business Day
Commission
Consolidated Net Tangible Assets
Corporate Trust Office
Depositary
Dollars
$
Exchange Act
Event of Default
Global Security
Holder
Holder of Securities
Securityholder
Indebtedness
Indenture
interest
Issuer
Issuer Order
Officers' Certificate
Opinion of Counsel
original issue date
original issue discount
Original Issue Discount Security
Outstanding
Periodic Offering
Person
Place of Payment
principal
principal amount
record date
Responsible Officer
Securities Act
Security
Securities
Senior Indebtedness
Subsidiary
Trust Indenture Act of 1939
Trustee
Unrestricted Subsidiary
U.S. Government Obligations
vice president
Yield to Maturity
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally
SECTION 2.2 Form of Trustee's Certificate of Authentication
SECTION 2.3 Amount Unlimited, Issuable in Series
SECTION 2.4 Authentication and Delivery of Securities
SECTION 2.5 Execution of Securities
SECTION 2.6 Certificate of Authentication
SECTION 2.7 Denomination and Date of Securities; Payments of Interest
SECTION 2.8 Registration, Transfer and Exchange
SECTION 2.10 Cancellation of Securities; Disposition Thereof
SECTION 2.11 Temporary Securities .
SECTION 2.12 CUSIP Numbers
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest
SECTION 3.2 Offices for Notices and Payments, etc .
SECTION 3.3 No Interest Extension
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office
SECTION 3.5 Provision as to Paying Agent
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists
SECTION 4.3 Reports by the Issuer
SECTION 4.4 Reports by the Trustee
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default
SECTION 5.2 Payment of Securities on Default; Suit Therefor
SECTION 5.3 Application of Moneys Collected by Trustee
SECTION 5.4 Proceedings by Securityholders
SECTION 5.5 Proceedings by Trustee
SECTION 5.6 Remedies Cumulative and Continuing
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders
SECTION 5.8 Notice of Defaults
SECTION 5.9 Undertaking to Pay Costs
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default
SECTION 6.2 Certain Rights of the Trustee
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds
Thereof
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc
SECTION 6.5 Moneys Held by Trustee .
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc.
SECTION 6.8 Qualification of Trustee; Conflicting Interests
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee
SECTION 6.11 Acceptance of Appointment by Successor Trustee
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee
SECTION 6.13 Preferential Collection of Claims Against the
Issuer
SECTION 6.14 Appointment of Authenticating Agent
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities
SECTION 7.3 Holders to be Treated as Owners
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding
SECTION 7.5 Right of Revocation of Action Taken
SECTION 7.6 Record Date for Consents and Waivers
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders
SECTION 8.3 Effect of Supplemental Indenture
SECTION 8.4 Documents to Be Given to Trustee
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms
SECTION 9.2 Successor Corporation to be Substituted
SECTION 9.3 Opinion of Counsel to be Given Trustee
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities
SECTION 10.3 Repayment of Moneys Held by Paying Agent
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years
SECTION 10.5 Indemnity for U.S. Government Obligations
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939
SECTION 11.8 GOVERNING LAW
SECTION 11.9 Submission to Jurisdiction
SECTION 11.10 Counterparts
SECTION 11.11 Effect of Headings
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article
SECTION 12.2 Notice of Redemption; Partial Redemptions
SECTION 12.3 Payment of Securities Called for Redemption
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption
SECTION 12.5 Mandatory and Optional Sinking Funds
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further Evidence as
to Ownership of Senior Indebtedness
SECTION 13.3 Payment Permitted If No Default
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition
SECTION 13.6 Trustee to Effectuate Subordination
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness
SECTION 13.8 Article Applicable to Paying Agents
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the
Issuer or Holders of Senior Indebtedness
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness
ARTICLE FOURTEEN
ADDITIONAL AMOUNTS
SECTION 14.1 Additional Amounts
FORM OF SUBORDINATED INDENTURE
THIS SUBORDINATED INDENTURE, dated as of _________ __, _______ between
TRITON ENERGY LIMITED, a Cayman Islands company (the "Issuer"), and
___________________, a _____________________, as trustee (the "Trustee").
W I T N E S S E T H :
---------------------
WHEREAS, the Issuer has duly authorized the issuance from time to time of
its unsecured subordinated debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has 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 Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided herein or in any indenture supplemental hereto or
unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted on the date of this Indenture.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz. as
of _________ __, _______.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Additional Amounts" has the meaning set forth in Section 14.1.
"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 Sections 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless otherwise
specified in a Board Resolution and an Officers' Certificate with respect to a
particular series of Securities, a day that (a) in the Place of Payment (or in
any of the Places of Payment, if more than one) in which amounts are payable, as
specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions
are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and, if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in Section
5.1.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to the Depositary for such series in accordance with Section
2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean, in the case of any Security, the Person in whose name such Security is
registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if any,
on indebtedness for money borrowed of such Person, indebtedness of such Person
evidenced by bonds, notes, debentures or similar obligations, and any guaranty
by such Person of any indebtedness for money borrowed or indebtedness evidenced
by bonds, notes, debentures or similar obligations of any other Person, whether
any such indebtedness or guaranty is outstanding on the date of this Indenture
or is thereafter created, assumed or incurred, (ii) obligations of such Person
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (iii) the principal of and premium, if
any, and interest, if any, on indebtedness incurred, assumed or guaranteed by
such Person in connection with the acquisition by it or any of its subsidiaries
of any other businesses, properties or other assets; (iv) lease obligations
which such Person capitalized in accordance with Statement of Financial
Accounting Standards No. 13 promulgated by the Financial Accounting Standards
Board or such other generally accepted accounting principles as may be from time
to time in effect; (v) any indebtedness of such Person representing the balance
deferred and unpaid of the purchase price of any property or interest therein
(except any such balance that constitutes an accrued expense or trade payable)
and any guaranty, endorsement or other contingent obligation of such Person in
respect of any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person; and (vi)
obligations of such Person under interest rate, commodity or currency swaps,
caps, collars, options and similar arrangements if and to the extent that any of
the foregoing indebtedness in (i) through (vi) would appear as a liability on
the balance sheet of such Person in accordance with generally accepted
accounting principles; and
(b) any amendments, modifications, refundings, renewals or extensions
of any indebtedness or obligation described as Indebtedness in clause (a) above.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing Securities
(including, without limitation, any Original Issue Discount Security that by its
terms bears interest only after maturity or upon default in any other payment
due on such Security), interest payable after maturity (whether at stated
maturity, upon acceleration or redemption or otherwise) or after the date, if
any, on which the Issuer becomes obligated to acquire a Security, whether upon
conversion, by purchase or otherwise.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
which is signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required by the provisions of such Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions thereof,
for the payment or redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent),
provided that, if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and interest, if any, on the
Securities of such series are payable as determined in accordance with Section
2.3.
"principal" of a debt security, including any Security, means the amount
(including, without limitation, if and to the extent applicable, any premium
and, in the case of an Original Issue Discount Security, any accrued original
issue discount, but excluding interest) that is payable with respect to such
debt security as of any date and for any purpose (including, without limitation,
in connection with any sinking fund, if any, upon any redemption at the option
of the Issuer, upon any purchase or exchange at the option of the Issuer or the
holder of such debt security and upon any acceleration of the maturity of such
debt security).
"principal amount" of a debt security, including any Security, means the
principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture.
"Restricted Subsidiary" means (i) any Subsidiary of the Issuer which owns
or leases (as lessor or lessee) (A) any property owned or leased by the Issuer
or any Subsidiary, or any interest of the Issuer or any Subsidiary in property
which is considered by the Issuer to be capable of producing oil or gas or
minerals in commercial quantities or (B) any processing or manufacturing plant
or pipeline owned or leased by the Issuer or any Subsidiary except any
processing or manufacturing plant or pipeline, or portion thereof, which the
Board of Directors in its good faith judgment determines in a Board Resolution
is not material to the business of the Issuer and its Subsidiaries taken as a
whole, or (ii) any Subsidiary designated as a Restricted Subsidiary by the Board
of Directors.
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture or, as the case may be, Securities that have been authenticated
and delivered pursuant to this Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at any
time (other than the Indebtedness evidenced by the Securities of any series)
except (a) any Indebtedness as to which, by the terms of the instrument creating
or evidencing such Indebtedness, it is provided that such Indebtedness is not
senior or prior in right of payment to the Securities or is pari passu or
subordinate by its terms in right of payment to the Securities, (b) renewals,
extensions and modifications of any such Indebtedness, (c) any Indebtedness of
the Issuer to a wholly-owned Subsidiary of the Issuer, (d) interest accruing
after the filing of a petition initiating any proceeding referred to in Sections
5.1(e) and 5.1(f) unless such interest is an allowed claim enforceable against
the Issuer in a proceeding under federal or state bankruptcy laws and (e) trade
payables.
"Subsidiary" of any specified Person means any corporation of which such
Person, or such Person and one or more Subsidiaries of such Person, or any one
or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections 8.1
and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is then
a trustee hereunder and, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer acquired
or organized after the date hereof, provided, however, that such Subsidiary
shall not be a successor, directly or indirectly, to any Restricted Subsidiary,
and (b) any Subsidiary of the Issuer substantially all the assets of which
consist of stock or other securities of a Subsidiary or Subsidiaries of the
character described in clause (a) of this paragraph, unless and until such
Subsidiary shall have been designated to be a Restricted Subsidiary pursuant to
clause (b) of the definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a word
or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice or as otherwise provided
in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
________________________________, 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.
____________________________, as Trustee
By ________________________________
as Authenticating Agent
By _______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited, Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness of the Issuer. There shall be established
in or pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record shall
be taken for the determination of Holders to whom any such interest is payable
or the method by which such rate or rates or date or dates shall be determined
or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series shall be
payable (if other than as provided in Section 3.2) and the office or agency for
the Securities of the series maintained by the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period or
periods within which, the price or prices (or the method by which such price or
prices shall be determined or both) at which, the form or method of payment
therefor if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve) Securities
of the series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a 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 or rates at which such original issue discount shall
accrete, if any, and the date or dates from or to which or period or periods
during which such original issue discount shall accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities of
such series shall be payable;
(17) if other than ___________________ is to act as Trustee for the
Securities of such series, the name and Corporate Trust Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such series are to be determined with
reference to an index, the manner in which such amounts shall be determined;
(19) the terms for conversion or exchange, if any, with respect to the
Securities of such series; and
(20) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
Any such Board Resolution or Officers' Certificate referred to above with
respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures and agreed to by the Trustee, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating the Securities of such series and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3)
and (4) below only at or before the time of the first request of the Issuer to
the Trustee to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or rates, if
any, and any other terms of Securities of such series shall be determined by an
Issuer Order or pursuant to such procedures, (d) if provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing and
(e) after the original issuance of the first Security of such series to be
issued, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities of such series were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case of an
offering that is not underwritten, certain terms of the Securities of such
series have been established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with this Indenture, and
when such other terms as are to be established pursuant to procedures set forth
in an Issuer Order shall have been established, all such terms will have been
duly authorized by the Issuer and will have been established in conformity with
the provisions of this Indenture;
(b) when the Securities of such series have been executed by the
Issuer and authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the purchasers thereof,
they will have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in accordance with their
respective terms, and will be entitled to the benefits of this Indenture; and
(c) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of such
series will not contravene any provision of applicable law or the articles of
incorporation or bylaws of the Issuer or any agreement or other instrument
binding upon the Issuer or any of its Subsidiaries that is material to the
Issuer and its Subsidiaries, considered as one enterprise, or, to such counsel's
knowledge after the inquiry indicated therein, any judgment, order or decree of
any governmental agency or any court having jurisdiction over the Issuer or any
Subsidiary of the Issuer, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the Issuer of its
obligations under the Securities, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, such Opinion of Counsel
shall also state that the Issuer has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Texas and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of any series under this Section 2.4 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance with this Section
2.4 and the Issuer Order with respect to such series, authenticate and deliver
one or more Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such series to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions, and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3 or, with respect to the Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest, if
any, shall be payable on the dates, established as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series, maturity date, interest rate, if any, and
original issue date in authorized denominations for a like aggregate principal
amount.
All Securities presented for registration of transfer shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by, the Holder or his attorney duly authorized in
writing.
At the option of the Holder thereof, Securities of any series (other than a
Global Security, except as set forth below) may be exchanged for a Security or
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed or (c) any Security if the Holder
thereof has exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such Security not
required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a part of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Securities of a series represented by
one or more Global Securities notifies the Issuer that it is unwilling or unable
to continue as Depositary for such Securities or if at any time the Depositary
for such Securities shall no longer be eligible under Section 2.4, the Issuer
shall appoint a successor Depositary with respect to such Securities. If a
successor Depositary for such Securities is not appointed by the Issuer within
90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that such
Securities be represented by one or more Global Securities shall no longer be
effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities
to or as directed by the Persons in whose names such Securities are so
registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of the Issuer, the Trustee shall authenticate and deliver a
new Security of the same series, maturity date, interest rate, if any, and
original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as may be required by the
Trustee or the Issuer or any such agent to indemnify and defend and to save each
of the Trustee and the Issuer and any such agent harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof and in the case of
mutilation or defacement, shall surrender the Security to the Trustee or such
agent.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of all cancelled
Securities in accordance with its standard procedures and shall deliver a
certificate of such disposition to the Issuer. If the Issuer or its agent shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on each of the Securities at the
place, at the respective times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of the
Securities are Outstanding, the Issuer will maintain in each Place of Payment,
an office or agency where the Securities may be presented for payment, an office
or agency where the Securities may be presented for registration of transfer and
for exchange as provided in this Indenture, and an office or agency where
notices and demands to or upon the Issuer in respect of the Securities or of
this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as registrar and
paying agent and as the agent upon whom notices and demands may be served with
respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall appoint
a paying agent other than the Trustee, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for
the payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and the
Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the principal
of, premium, if any, or interest, if any, on the Securities when the same shall
be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or before
each due date of the principal of or interest, if any, on the Securities, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal, premium, if any, or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of, premium, if any, or
interest, if any, on the Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will, on
or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this Section
4.2, and as to the approximate cost of mailing to such Securityholders the form
of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.2 a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer with
the conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 4.4(c), such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections (a) and (b) of this
Section 4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act of 1939 with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or otherwise), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and when
such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series or in this Indenture continued for a period of 90 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given by certified or registered mail to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or without
the consent of the Issuer a court having jurisdiction shall enter a judgment,
order or decree adjudging the Issuer a bankrupt or insolvent, or enter an order
for relief for reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under any applicable bankruptcy, insolvency or other
similar law of the Cayman Islands, and the continuance of any such judgment,
order or decree is unstayed and in effect for a period of 90 consecutive days;
or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy, insolvency or
other similar law of the Cayman Islands, or for an adjudication of insolvency,
or shall consent to the institution of bankruptcy or insolvency proceedings
against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or shall
consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of substantially all of its property, or the Issuer shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration of
any applicable grace periods and the presentation of any debt instruments, if
required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $20,000,000, without each such 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 the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, a written notice
specifying each such default and requiring the Issuer to cause each such default
and acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Securities of such series
which shall have become due by acceleration, shall have been cured or shall have
been waived in accordance with Section 5.7 or provision deemed by the Trustee to
be adequate shall have been made therefor, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Issuer and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default specified in
Section 5.1(e) or 5.1(f) occurs with respect to the Issuer, all unpaid principal
amount (or, if the Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Securities of each
series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a), (b)
or (c), the Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Responsible Officer by
the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 60 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is 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 Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses or otherwise
pursuant to Section 6.6, including counsel fees and expenses incurred by it up
to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses and counsel fees and expenses out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the Holders of the
Securities of such series may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other expenses and liabilities incurred, and all advances made, by the
Trustee pursuant to Section 6.6 except as a result of its negligence or bad
faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if any, on
the Securities of such series, in the order of the maturity of the installments
of such interest, if any, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest, if
any, at the rate borne by the Securities of such series, such payment to be made
ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for principal
and interest, if any, with interest on the overdue principal and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest, if any, at the rate borne by the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of principal over
interest or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to receive
the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Securities to which it
relates, or which in any manner shall have been kept alive after maturity by an
extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the Holder of every Security of such series
with every other Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as to
any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Thirteen, 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 Issuer, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event
of Default hereunder shall have been waived as permitted by this Section 5.7,
said default or Event of Default shall for all purposes of the Securities and
this Indenture be deemed to have been cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities of any series then Outstanding,
or to any suit instituted by any Securityholders for the enforcement of the
payment of the principal of or interest, if any, on any Security against the
Issuer on or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
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 Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate or Issuer Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any advice
of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture
(including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable
for the use or application by the Issuer of any of the Securities or of the
proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee and shall not be
subordinate to the payment of Senior Indebtedness pursuant to Article Thirteen.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities, and
the Securities are hereby subordinated to such senior claim. When the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1 or in connection with Article Five hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law. The provisions of this Section 6.6
shall survive the resignation or removal of the Trustee and the termination of
this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the Trust Indenture Act of 1939 regarding disqualification of a
trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any state or the District of
Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or any Affiliate of such obligor shall serve as
trustee upon the Securities. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
A different Trustee may be appointed by the Issuer for each series of
Securities prior to the issuance of such Securities. If the initial Trustee for
any series of Securities is to be a trustee other than _____________________,
the Issuer and such Trustee shall, prior to the issuance of such Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Securities of such series and
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Article Five, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 with respect to any series of Securities after written request therefor by
the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Article Five, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall give notice thereof to the Holders of Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any Authenticating
Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by or
on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or by any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three Business Days after such filing. Except as aforesaid, any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of the
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and any such Persons, shall be entitled to
waive any such past default, consent to any such supplemental indenture or waive
compliance with any such term, condition or provision, whether or not such
Holder remains a Holder after such record date; provided, however, that unless
such waiver or consent is obtained from the Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Securities of such series prior
to the date which is the 180th day after such record date, any such waiver or
consent previously given shall automatically and, without further action by any
Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to
be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series), and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall materially adversely
affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in coupon
form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities for the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(g) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act of 1939, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act of 1939, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act of 1939 as in effect at the date as of which this instrument was executed or
any corresponding provision provided for in any similar federal statute
hereafter enacted;
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than _____________________ as Trustee for a series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.9
hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer solely
in respect of, or add new covenants or Events of Default of the Issuer that
apply solely to, Securities not Outstanding on the date of such supplemental
indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities then Outstanding
of any series affected by such supplemental indenture, the Issuer, when
authorized by a Board Resolution (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order), and
the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series; provided, that no such supplemental indenture shall (a) extend the
stated final maturity of the principal of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest, if
any, thereon (or, in the case of an Original Issue Discount Security, reduce the
rate of accretion of original issue discount thereon), or reduce or alter the
method of computation of any amount payable on redemption, repayment or purchase
by the Issuer thereof (or the time at which any such redemption, repayment or
purchase may be made), or make the principal thereof (including any amount in
respect of original issue discount), or interest, if any, thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms of the Securities, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy in each case pursuant to Article Five, or impair or affect the right
of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment or purchase at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under
this Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant, Event of
Default or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, with respect to
such covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may at its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the
execution and delivery of such supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may bear
a notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the Issuer, and such
Securities may be authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia
or the Cayman Islands or any political subdivision thereof; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any such
consolidation or merger or any sale, conveyance or lease of all or substantially
all of the property of the Issuer and upon the assumption by the successor
Person, by supplemental indenture executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest, if any, on all of the Securities
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, such successor Person shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the Issuer (including any
intervening successor to the Issuer which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture and
the Securities; provided, however, that in the case of a sale, lease, exchange
or other disposition of the property and assets of the Issuer (including any
such intervening successor), the Issuer (including any such intervening
successor) shall continue to be liable on its obligations under this Indenture
and the Securities to the extent, but only to the extent, of liability to pay
the principal of, premium, if any, and interest, if any, on the Securities at
the time, places and rate prescribed in this Indenture and the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Issuer, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
Issuer, such changes in phraseology and form (but not in substance) may be made
in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee, subject
to Sections 6.1 and 6.2, shall receive an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease,
exchange or other disposition and any such assumption complies with the
provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant Defeasance.
(A) If at any time (a) the Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all Securities theretofore authenticated (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer (including all amounts, payable to the Trustee pursuant to Section
6.6), then this Indenture shall cease to be of further effect, and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the
satisfaction and discharge contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction and discharging this Indenture. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and 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 Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities of
any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities with
respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or by their terms are to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities
of such series, cash in an amount (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or non-callable,
non-prepayable bonds, notes, bills or other similar obligations issued or
guaranteed by the United States government or any agency thereof the full and
timely payment of which are backed by the full faith and credit of the United
States ("U.S. Government Obligations"), maturing as to principal and interest,
if any, at such times and in such amounts as will insure the availability of
cash, or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal of, premium, if any, or interest, if any, is due and
payable, and (2) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series; then the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
date of the deposit referred to in clause (ii) above and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in
effect (except, in the case of clause (c) of this Section 10.1(B), as to (i)
rights of registration of transfer and exchange of Securities of such series,
(ii) rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (iii) rights of Holders of Securities of such series
to receive payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2 with respect to
Securities of such series) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(C) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series (i) cash in an amount, or
(ii) U.S. Government Obligations, maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer is a
party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y), since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm that,
the Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of, premium, if any, or interest, if any,
on any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal, premium, if any, or interest, if
any, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.1 or the principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors and the Holders of the Senior Indebtedness
and the Holders of the Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Triton Energy Limited, Caledonian House, Mary Street, P.O. Box 1043, George
Town, Grand Cayman, Cayman Islands, with a copy to Triton Energy Corporation,
6688 North Central Expressway, Suite 1400, Dallas, Texas 75206, attention Legal
Department. Any notice, direction, request or demand by the Issuer or any
Holder of Securities to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Trustee is filed by the Trustee with the Issuer) to
___________________, ____________________, ______________, Attention: Corporate
Trust Department.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than a
certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of principal of or interest, if any, on the Securities of any series
or the date fixed for redemption, purchase or repayment of any such Security
shall not be a Business Day, then payment of interest, if any, premium, if any,
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, or
is deemed applicable to this Indenture by virtue of the provisions of the Trust
Indenture Act of 1939, such required provision shall control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Submission to Jurisdiction. The Issuer hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and of the
courts of the United States of America having jurisdiction in the State of New
York for the purpose of any legal action or proceeding in any such court with
respect to, or arising out of, this Indenture or the Securities. The Issuer
designates and appoints Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: Robert B. Holland,
III and its successors as its lawful agent in the United States of America upon
which may be served, and which may accept and acknowledge, for and on behalf of
the Issuer all process in any action, suit or proceedings that may be brought
against the Issuer in any of the courts referred to in this Section, and agrees
that such service of process, or the acceptance or acknowledgment thereof by
said agent, shall be valid, effective and binding in every respect; provided
however, that if said agency shall cease for any reason whatsoever, the Issuer
hereby designates and appoints, without power of revocation, the Secretary of
State of the State of New York to serve as its agent for service of process.
Nothing contained in this Section 11.9 shall limit the right of the Holders of
the Securities or any of them to take proceedings against the Issuer in any
other court of competent jurisdiction no, by virtue of anything contained
herein, shall the taking of proceedings in one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest, if
any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount) thereon
or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing
of the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount), on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier date
shall be specified in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such series were established)
except as provided in Sections 6.5 and 10.4, to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the redemption price shall, until paid or duly provided
for, bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, and of like tenor, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series to be so credited has theretofore been so credited, (c) stating that
no defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured or otherwise ceased to
exist) and are continuing, and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before
any such 60th day, to deliver such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof, and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest, if
any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, and subject to Article Thirteen, 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.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. (a) The
Issuer covenants and agrees, and each Holder of Securities of each series, by
his acceptance thereof, likewise covenants and agrees, that anything in this
Indenture or the Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each series is subordinate and
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the
payment of any principal of, premium, if any, or interest, if any, on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, or
(ii) any other default shall occur with respect to Senior Indebtedness and the
maturity of such Senior Indebtedness has been accelerated in accordance with its
terms, then, upon written notice of such default to the Issuer and the Trustee
by the holders of Senior Indebtedness or any trustee therefor, unless and until,
in either case, the default has been cured or waived, or has ceased to exist, or
any such acceleration has been rescinded or such Senior Indebtedness has been
paid in full, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest, if any, on any of the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities other than those made in capital stock of the Issuer (or cash
in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of
this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods occurs (a "Senior Nonmonetary
Default"), then, upon the receipt by the Issuer and the Trustee of written
notice thereof (a "Payment Notice") from or on behalf of holders of such Senior
Indebtedness specifying an election to prohibit such payment and other action by
the Issuer in accordance with the following provisions of this paragraph (c),
the Issuer may not make any payment or take any other action that would be
prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment
Blockage Period") commencing on the date of receipt of such Payment Notice and
ending on the earlier of (i) the date, if any, on which the holders of such
Senior Indebtedness or their representative notify the Trustee that such Senior
Nonmonetary Default is cured or waived or ceases to exist or the Senior
Indebtedness to which such Senior Nonmonetary Default relates is discharged or
(ii) the 179th day after the date of receipt of such Payment Notice.
Notwithstanding the provisions described in the immediately preceding sentence,
the Issuer may resume payments on the Securities following such Payment Blockage
Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator,
liquidator or trustee of the Issuer or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or (D) a petition is filed against the Issuer under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect (including without limitation the Bankruptcy Code),
and is not dismissed within 60 days after such filing; or (ii) the Issuer (A)
commences a voluntary case or other proceeding seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debt or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or (C)
fails generally to, or cannot, pay its debts generally as they become due or (D)
takes any corporate action to authorize or effect any of the foregoing; or (iii)
any Subsidiary of the Issuer takes, suffers or permits to exist any of the
events or conditions referred to in the foregoing clause (i) or (ii), then all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or adjustment) which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall have been paid in full.
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Issuer ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the Issuer
the amounts at the time due and owing on account of unpaid principal of and
interest, if any, on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than securities
of the Issuer or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), shall be received by the Trustee or any
Holder in contravention of any of the terms hereof, such payment or distribution
of securities shall be received in trust for the benefit of and shall be paid
over or delivered and transferred to the holders of the Senior Indebtedness then
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all such Senior Indebtedness in full. In the event
of the failure of the Trustee or any Holder to endorse or assign any such
payment, distribution or security, each holder of such Senior Indebtedness is
hereby irrevocably authorized to endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Issuer or any
Holder of Securities. Nothing contained herein shall impair, as between the
Issuer and the Holders of Securities of each series, the obligation of the
Issuer to pay to such Holders the principal of and interest, if any, on such
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to remove cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior Indebtedness,
and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a
parity with the Securities, shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the bankruptcy trustee, receiver, assignee for the benefit of creditors or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of Senior Indebtedness (or is such a trustee or representative). If the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distributions pursuant to this Article Thirteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, as to the extent to which such Person is entitled to participate in such
payment or distribution, and to other facts pertinent to the rights of such
Person under this Article Thirteen, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained in this
Article Thirteen or elsewhere in this Indenture, or in any of the Securities,
shall prevent (a) the Issuer at any time, except during the pendency of any
default with respect to Senior Indebtedness described in Section 13.1(b) or
Section 13.1(c) or of any of the events described in Section 13.1(d), from
making payments of the principal of or interest, if any, on the Securities, or
(b) the application by the Trustee or any paying agent of any moneys deposited
with it hereunder to payments of the principal of or interest, if any, on the
Securities, if, at the time of such deposit, the Trustee or such paying agent,
as the case may be, did not have the written notice provided for in Section 13.5
of any event prohibiting the making of such deposit, or if, at the time of such
deposit (whether or not in trust) by the Issuer with the Trustee or paying agent
(other than the Issuer) such payment would not have been prohibited by the
provisions of this Article Thirteen, and the Trustee or any paying agent shall
not be affected by any notice to the contrary received by it on or after such
date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness. Any
failure by the Issuer to make any payment on or under any Senior Indebtedness,
other than any Senior Indebtedness as to which the provisions of this Section
13.4 shall have been waived by the Issuer in the instrument or instruments by
which the Issuer incurred, assumed, guaranteed or otherwise created such Senior
Indebtedness, shall not be deemed a default under Section 13.1 hereof if (i) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, or (B) if a judgment that is subject to further review or appeal has
been issued, the Issuer shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained pending
such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition. Anything
in this Article Thirteen or elsewhere in this Indenture contained to the
contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses (b)
and (c) of Section 13.1 has happened unless and until the Trustee shall have
received an Officers' Certificate to the effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or the representatives,
of Senior Indebtedness who shall have been certified by the Issuer or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided, however, that, if
the Trustee shall not have received the Officers' Certificate or notice provided
for in this Section 13.5 at least three Business Days preceding the date upon
which by the terms hereof any moneys become payable for any purpose (including,
without limitation, the payment of either the principal of or interest, if any,
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and apply the same to the purpose for which they were received and shall
not be affected by any notice to the contrary that may be received by it within
three Business Days preceding such date. The Issuer shall give prompt written
notice to the Trustee and to each paying agent of any facts that would prohibit
any payment of moneys to or by the Trustee or any paying agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Thirteen shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any time any
paying agent other than the Trustee shall have been appointed by the Issuer and
be then acting hereunder, the term "Trustee" as used in this Article Thirteen
shall in such case (unless the context shall otherwise require) be construed as
extending to and including such paying agent within its meaning as fully for all
intents and purposes as if the paying agent were named in this Article Thirteen
in addition to or in place of the Trustee; provided, however, that Sections 13.5
and 13.7 shall not apply to the Issuer if it acts as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the
Issuer or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
Senior Indebtedness, may at any time or from time to time and in their absolute
direction, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under such Senior
Indebtedness, including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Issuer, the Trustee or the
Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute money or assets to Securityholders or the
Issuer. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
ARTICLE FOURTEEN
ADDITIONAL AMOUNTS
SECTION 14.1 Additional Amounts. The Issuer hereby agrees that any amounts
to be paid by the Issuer hereunder with respect to any Security 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, the Issuer will (subject to
compliance by the Holder of such Security with any relevant administrative
requirements) pay such additional amounts ("Additional Amounts") in respect of
principal amount, premium (if any), and interest (if any), in accordance with
the terms of the Securities and this Indenture, as may be necessary in order
that the net amounts paid to such Holder or the Trustee, as the case may be,
after such deduction or withholding, shall equal the respective amounts of
principal amount, premium (if any), and interest (if any), in accordance with
the terms of the Securities and this Indenture, as specified in such Securities
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 Security (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 Security or the collection of principal
amount, premium (if any), and interest (if any), in accordance with the terms of
the Securities and this Indenture, or the enforcement of such Security or (B)
where presentation is required, such Security was presented more than 30 days
after the date such payment became due or was provided for, whichever is later;
(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), 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 Security, 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 Security 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 Security.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of _________ __, ________.
TRITON ENERGY LIMITED
By:
Title:
Attest:
By:
Title:
_______________________________,
as Trustee
By:
Title:
Attest:
By:
Title:
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 2, 1999 relating to the
financial statements and financial statement schedule, which appears in Triton
Energy Limited's Annual Report on Form 10-K for the year ended December 31,
1998. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
PricewaterhouseCoopers LLP
Dallas, Texas
June 18, 1999
EXHIBIT 23.2
DeGOLYER and MacNAUGHTON
One Energy Square
Dallas, Texas 75206
June 4, 1999
Triton Energy Limited
Caledonian House
Mary Street
P.O. Box 1043
George Town
Grand Cayman, Cayman Islands
Gentlemen:
We hereby consent to (i) the incorporation by reference from the Annual
Report on Form 10-K for the year ended December 31, 1998 (the "Form 10-K") of
Triton Energy Limited (the "Company"), of certain data from our "Appraisal
Report, as of December 31, 1998, on Certain Properties in Colombia owned by
Triton Colombia Incorporated." And the specific references to our firm under the
caption "Business and Properties -Reserves" and in note 25 of the Notes to the
Consolidated Financial Statements under the caption "Oil and Gas Reserve Data"
in the Form 10-K, in the Registration Statement of the Company on Form S-3 to be
filed in June 1999 relating to an offering of the Company's securities and (ii)
the references to our firm in such Registration Statement under the caption
"Experts". Our estimates of reserves, however, for the Cusiana and Cupiagua
fields have been aggregated in the Form 10-K with other Colombian reserves for
which we have not prepared estimates.
Very truly yours,
DeGOLYER and MacNAUGHTON
EXHIBIT 25.1
POWER OF ATTORNEY
Each person whose signature appears below authorizes James C. Musselman,
A.E. Turner, III, Bernard Gros-Dubois or W. Greg Dunlevy, or any of them, to
execute in the name of each such person who is then an officer or director of
Triton Energy Limited (the "Company") and to file a Registration Statement on
Form S-3 relating to debt securities, preference shares, ordinary shares, and
warrants to purchase debt securities, preference shares and ordinary shares, and
any amendments thereto (and any additional Registration Statement related
thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933
(and all further amendments including post-effective amendments thereto)) in
each case necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in respect thereof, in connection
with the registration of the securities which are the subject of such
Registration Statements, which amendments may make such changes in such
Registration Statements as such attorney may deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed by the following persons in the
capacities and on May 11, 1999.
SIGNATURE TITLE
--------- -----
/s/ Thomas O. Hicks Chairman of the Board of Directors
- ---------------------
(Thomas O. Hicks)
/s/James C. Musselman President, Chief Executive Officer and
- ---------------------- Director
(James C. Musselman) (Principal Executive Officer)
/s/Sheldon R. Erickson Director
- ------------------------
(Sheldon R. Erikson)
Director
- ---------------------
(Jack D. Furst)
/s/Fitzgerald S. Hudson Director
- -------------------------
(Fitzgerald S. Hudson)
/s/John R. Huff Director
- -----------------
(John R. Huff)
/s/Michael E. McMahon Director
- -----------------------
(Michael E. McMahon)
/s/Lamar Norsworthy Director
- --------------------
(Lamar Norsworthy)
/s/C. Richard Vermillion Director
- --------------------------
(C. Richard Vermillion)
/s/J. Otis Winters Director
- --------------------
(J. Otis Winters)
