As filed with the Securities and Exchange Commission on October 18, 1994
Registration No. 33-55347
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________
TRITON ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
_________________________
Texas 75-1151855
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(214) 691-5200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_________________________
Robert B. Holland, III, Esq.
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(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, check the following box. /X/
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit <F1> price <F1> registration fee
-------------------------------------- --------------------- --------------------- --------------------- -------------------
<S> <C> <C> <C> <C>
Debt Securities <F2> . . . . . . . . .
Preferred Stock, without
par value <F3> . . . . . . . . . . . .
Common Stock, par value $1.00
per share <F4><F5> . . . . . . . . . .
Warrants <F6> . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . $127,799,200 <F7> 100% $127,799,200 <F7> $44,069
____________________
<FN>
<F1> Estimated solely for the purpose of calculating the registration fee.
<F2> Including such additional amount as may be necessary so that, if Debt
Securities are issued with an original issue discount, the aggregate
initial offering prices of all Debt Securities will equal $127,799,200.
<F3> Subject to note <F7> below, there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from
time to time, by the Registrant.
<F4> Subject to note <F7> below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time
to time, by the Registrant. There are also being registered hereunder
an indeterminate number of shares of Common Stock as shall be issuable
upon conversion or redemption of Preferred Stock or Debt Securities
registered hereby.
<F5> Includes Preferred Stock Purchase Rights ("Rights"). The Rights are
associated with and trade with the Common Stock. The value, if any,
attributable to the Rights is reflected in the market price of the
Common Stock.
<F6> Subject to note <F7> below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Preferred Stock, Common Stock or Debt Securities registered
hereby.
<F7> In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$127,799,200. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus herein also relates to the remaining $172,200,800 of Debt Securities
covered by Registration Statement No. 33-69230. The enclosed Prospectus
<PAGE>
constitutes Post-Effective Amendment No. 1 to said Registration Statement No.
33-69230 to cover up to $172,200,800 of Debt Securities of the Registrant,
which the Registrant hereby requests be declared effective at the same time as
the within registration statement.
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 of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said section 8(a),
may determine.
<PAGE>
___________________________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
___________________________________________________________________________
Subject to Completion, dated October 18, 1994
PROSPECTUS
Triton Energy Corporation
Debt Securities
Preferred Stock
Common Stock
Warrants
_________________________
Triton Energy Corporation ("Triton" or the "Company") may offer and
sell from time to time, in one or more series, (i) its unsecured debt
securities consisting of notes, debentures or other evidences of indebtedness
(the "Debt Securities") which may be senior ("Senior Debt Securities"), senior
subordinated ("Senior Subordinated Debt Securities") or subordinated
("Subordinated Debt Securities"), (ii) preferred stock, without par value, of
the Company (the "Preferred Stock"), (iii) common stock, par value $1.00 per
share, of the Company (the "Common Stock") and (iv) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock or Common Stock (the Debt Securities,
Preferred Stock, Common Stock and Warrants are collectively referred to as the
"Securities"), or any combination of the foregoing, at an aggregate initial
offering price not to exceed $300,000,000 at prices and on terms to be
determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"), together with the terms of the offering of
the Securities and the initial price and the net proceeds to Triton from the
sale thereof. The Prospectus Supplement will set forth with regard to the
particular Securities, without limitation, the following: (i) in the case of
Debt Securities, the specific designation, aggregate principal amount, ranking
as senior debt, senior subordinated debt or subordinated debt, maturity, rate
or rates (or method of determining the same) and time or times for the payment
of interest, if any, any terms for optional or mandatory redemption or
repurchase or sinking fund provisions, any conversion or exchange rights, (ii)
in the case of Preferred Stock, the designation, number of shares, liquidation
preference per share, initial public offering price, dividend rate (or method
of calculation thereof), dates on which dividends shall be payable and dates
<PAGE>
from which dividends shall accrue, any redemption or sinking fund provisions,
any conversion or exchange rights, (iii) in the case of Common Stock, the
number of shares of Common Stock and the terms of the offering and sale thereof
and (iv) in the case of Warrants, the number and terms thereof, the designation
and the number of securities issuable upon their exercise, the exercise price,
the terms of the offering and sale thereof and, where applicable, the duration
and detachability thereof.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any
underwriters are involved in the sale of any Securities in respect of which
this Prospectus is being delivered, the names of such agents or underwriters
and any applicable commissions or discounts will be set forth in the
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_________________________
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission, 450
Fifth Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549; and at
regional offices of the Commission at the Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7 World Trade
Center, New York, New York 10048. Copies of such material may be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Such material may also be
inspected and copied at the offices of the New York Stock Exchange, Inc.,
20 Broad Street, New York, New York 10005.
As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information contained in the Registration Statement on
Form S-3 (the "Registration Statement") of which this Prospectus is a
part. For further information with respect to the Company and the Securities
offered hereby, reference is made to the Registration Statement and the
exhibits thereto. Statements made in this Prospectus as to the contents of any
contract, agreement or other document are not necessarily complete; and while
the Company believes the descriptions of the material provisions of such
contracts, agreements and other documents contained in this Prospectus are
accurate summaries of such material provisions, reference is made to such
contract, agreement or other document filed as an exhibit to the Registration
Statement for a more complete description of the matter involved, and each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following documents previously filed with the Commission pursuant to the
Exchange Act: (i) the Company's Annual Report on Form 10-K for the fiscal
year ended May 31, 1994 and Amendment No. 1 thereto on Form 10-K/A, (ii) the
Company's Current Report on Form 8-K/A dated July 15, 1994 and (iii) the
Company's Quarterly Report on Form 10-Q for the Quarter ended August 31,
1994.
Each document filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities pursuant hereto shall be
deemed to be incorporated by reference in this Prospectus and to be a part of
this Prospectus from the date of filing of such document. Any statement
contained in this Prospectus or in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to
the extent that a statement contained in this Prospectus or in any subsequently
filed document that also is or is deemed to be incorporated by reference in
this Prospectus modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
<PAGE>
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the documents that are incorporated by reference in
this Prospectus, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference into such documents). Requests
should be directed to Investor Relations, Triton Energy Corporation, 6688 North
Central Expressway, Suite 1400, Dallas, Texas 75206-9926, telephone
(214) 691-5200.
THE COMPANY
Triton is an independent energy company primarily engaged in international
oil and gas exploration and production through wholly-owned and partly-owned
subsidiaries and affiliates. Triton's principal properties and operations are
located in Colombia and Malaysia-Thailand. Triton also has oil and gas
interests in other Latin American and Asian countries, Europe, Australia and
North America.
The Company was incorporated in Texas in 1962. The Company's principal
executive offices are located at 6688 North Central Expressway, Suite 1400,
Dallas, Texas 75206-9926, and the Company's telephone number is (214) 691-5200.
The "Company" or "Triton" refers to Triton Energy Corporation and its
consolidated subsidiaries, unless otherwise indicated or the context otherwise
suggests.
INVESTMENT CONSIDERATIONS
In addition to the other information set forth in or incorporated by
reference in this Prospectus and any applicable Prospectus Supplement,
potential investors in the Securities should consider the following investment
considerations.
The Oil and Gas Industry Generally. The oil and gas exploration and production
industry is volatile and highly competitive. Oil and gas prices have
fluctuated substantially in recent years as a result of numerous factors,
including changes in worldwide production and demand levels, various worldwide
political and economic events, reduced rates of economic growth throughout much
of the world and other events which are outside of the Company's control. The
Company's operations in the Llanos Basin of Colombia primarily involve oil
production and will therefore be especially sensitive to the future price of
oil. The Company's oil and gas business is also subject to all of the
operating risks normally associated with the exploration for and production of
oil and gas, including blowouts, cratering, pollution and fires, each of which
could result in damage to or destruction of oil and gas wells, formations,
production facilities or properties, or in personal injury. In addition,
reserve estimates with respect to Colombia and other areas of the Company's oil
and gas operations are imprecise and subject to change as further information
becomes available.
<PAGE>
Moreover, because the Company may not be the operator or own a majority
interest in a number of contract areas, it will not be able to control the
timing or manner in which capital expenditures will occur in these areas to the
same degree as if it were the operator or owner of a majority interest. The
Company's inability to meet its obligations in these and other contract areas
could have a material adverse effect on its interests in these contract areas.
The Company's Financial Position. The Company reported losses from
continuing operations in each of the last five fiscal years. To date,
working capital (amounting to $67.3 million as of August 31, 1994, excluding
$28.9 million of long-term marketable securities), external sources of funding,
asset sales and net cash flow from operations have been sufficient to service
the Company's existing debt obligations, even though the Company has
experienced losses. The Company expects to pursue financing alternatives and
to dispose of certain assets or operations in order to meet expenditure
requirements on existing or contemplated projects and to service its debt
obligations, the timing and nature of which may be affected by, among other
things, the timing and extent of production and capital expenditures in
Colombia and elsewhere. There can be no assurance as to the ability of the
Company to effect sales of its assets or to access public or private markets
for such financings, the timing of such sales or financings or the proceeds,
if any, that the Company could realize therefrom. Moreover, the Company's
ability to pursue additional debt financing is limited by covenants in the
indenture pursuant to which $240 million principal amount of its 12 1/2% Senior
Subordinated Discount Notes due 1997 (the "1997 Notes") were issued in 1992 and
in the indenture pursuant to which $170 million principal amount of its 9 3/4%
Senior Subordinated Discount Notes due 2000 (the "2000 Notes") were issued
in 1993. The indenture relating to the 1997 Notes, as amended in August
1993, also would require the Company to repurchase a portion of the
outstanding 1997 Notes if the Company fails to maintain a consolidated
net worth of at least $225 million (compared to a consolidated net worth
of $256.3 million at August 31, 1994).
For information regarding the Company's financial position and results
of operations, including the amounts of such losses, the Company's net working
capital from time to time, and the Company's deficits of earnings to fixed
charges and earnings to combined fixed charges and preferred dividends, see
"Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preferred Dividends" herein and the Company's Consolidated Statements of
Operations, Consolidated Balance Sheets and Consolidated Statements of Cash
Flows in the Company's annual and periodic reports and other documents
incorporated herein by reference, including "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included in the
Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1994.
Environmental Matters. The Company is subject to extensive environmental laws
and regulations. These laws regulate the discharge of oil, gas or other
materials into the environment and may require the Company to remove or
mitigate the environmental effects of the disposal or release of such materials
at various sites. The Company does not believe that its environmental risks
are materially different from those of comparable companies in the oil and gas
industry. Nevertheless, no assurance can be given that environmental laws and
<PAGE>
regulations will not, in the future, adversely affect the Company's results of
operations, cash flows or financial position.
Risks of Foreign Operations. The Company derives a significant portion of its
consolidated revenues from foreign operations. Risks inherent in foreign
operations include loss of revenue, property and equipment from such hazards as
expropriation, nationalization, war, insurrection and other political risks,
risks of increase in taxes and governmental royalties, renegotiation of
contracts with governmental entities, as well as changes in laws and policies
governing operations of foreign based companies. Other risks inherent in
foreign operations are the possibility of realizing economic currency exchange
losses when transactions are completed in currencies other than United States
dollars and the Company's ability to freely repatriate its earnings under
existing exchange control laws.
Triton's interests in Colombia, on which Triton's ability to service its
debt and preferred stock substantially depends, are subject to additional more
specific risks, including uncertainty as to the extent of the discoveries and
the cost and magnitude of capital expenditures for drilling and production
facilities, and guerilla activities.
Regulatory Matter. On July 28, 1992, the Securities and Exchange Commission
requested that the Company provide to the Commission, on a voluntary basis,
information and documents regarding certain of the Company's employees and
former employees, the Company's operations in Indonesia, the Company's dealings
with Indonesian officials, and the Company's internal accounting controls. The
staff of the Commission has advised the Company that the Company should not
construe this inquiry as an indication that any violation of law has occurred
or as an adverse reflection upon any person, entity or security. Subsequently,
the Company has been advised that the Justice Department is conducting a
similar inquiry. The Company continues to cooperate with both agencies. Based
upon the information available to the Company to date, the Company believes
that it will be able to resolve any issues that either agency might raise
concerning these matters in a manner that would not have a material adverse
effect on the Company's consolidated financial condition.
USE OF PROCEEDS
Unless otherwise provided in the applicable Prospectus Supplement, the net
proceeds from the sale of the particular Securities offered by this Prospectus
and each Prospectus Supplement (the "Offered Securities") will be used
principally to continue funding the Company's obligations relating to the
development of its operations in Colombia and Malaysia-Thailand.
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
For purposes of computing the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred dividends, earnings consist of
earnings (loss) from continuing operations before income taxes, minority
interest and extraordinary items and cumulative effect of accounting change,
plus fixed charges (interest charges and preferred stock dividend requirements
of subsidiaries, adjusted to a pretax basis), less interest capitalized, less
preferred stock 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 preferred dividends for the Company for
the periods indicated:
<TABLE>
<CAPTION>
Three Months Ended
August 31, Years Ended May 31,
---------------------- -----------------------------------------------
1994 1993 1994 1993 1992 1991 1990
---------- --------- -------- ------- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges . . . <F1> 6.0x <F1> <F1> <F1> 1.2x <F1>
Ratio of earnings to combined fixed
charges and preferred dividends . . . <F2> 6.0x <F2> <F2> <F2> 1.0x <F2>
____________________
<FN>
<F1> Earnings were inadequate to cover fixed charges for the three months
ended August 31, 1994 by $12,768,000 and for the years ended May 31,
1994, 1993, 1992 and 1990 by $45,070,000, $157,724,000, $103,138,000 and
$62,825,000, respectively. The ratio of earnings to fixed charges, if
adjusted to remove significant nonrecurring items, would have been 0.5x
in 1991 and 0.3x in 1990. Without nonrecurring items, earnings would
have been inadequate to cover fixed charges for the three months ended
August 31, 1994 and 1993 by $11,784,000 and $8,719,000 respectively, and
for the years ended May 31, 1994, 1993, 1992, 1991 and 1990 by
$55,509,000, $47,029,000, $35,960,000, $14,723,000 and $24,615,000.
<F2> Earnings were inadequate to cover fixed charges and preferred dividends
for the three months ended August 31, 1994 by $12,768,000 and for the
years ended May 31, 1994, 1993, 1992 and 1990 by $45,070,000,
$157,724,000, $104,524,000 and $68,223,000, respectively. The ratio of
earnings to fixed charges and preferred dividends, if adjusted to remove
significant nonrecurring items, would have been 0.4x in 1991 and 0.3x in
1990. Without nonrecurring items, earnings would have been inadequate
to cover fixed charges and preferred dividends for the three months
ended August 31, 1994 and 1993 by $11,784,000 and $8,719,000,
respectively, and for the years ended May 31, 1994, 1993, 1992, 1991 and
1990 by $55,509,000, $47,029,000, $37,346,000, $20,269,000 and
$30,013,000, respectively.
</TABLE>
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured senior, senior subordinated or
subordinated debt of the Company and will be issued, in the case of Senior Debt
Securities, under a Senior Indenture (the "Senior Debt Indenture") between the
Company and Chemical Bank, as trustee, in the case of Senior Subordinated Debt
Securities, under a Senior Subordinated Indenture (the "Senior Subordinated
Debt Indenture") between the Company and United States Trust Company of New
York, as trustee, and in the case of Subordinated Debt Securities, under a
Subordinated Indenture (the "Subordinated Debt Indenture") between the Company
and such trustee as shall be named in a Prospectus Supplement (the
"Subordinated Debt Trustee"). The Senior Debt Indenture, the Senior
Subordinated Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures." None of the Indentures limits the amount of Debt Securities that
may be issued thereunder. The Indentures permit the appointment of a different
trustee for each series of Debt Securities. As used herein, the term "Trustee"
means Chemical Bank, United States Trust Company of New York or the
Subordinated Debt Trustee, as the case may be. If there is at any time more
than one trustee under any Indenture, the term "Trustee" as used in this
Prospectus will mean each such trustee and will apply to each such trustee only
with respect to those series of Debt Securities with respect to which it is
serving as trustee. The Indentures are filed as exhibits to the Registration
Statement of which this Prospectus is a part. The following summaries of
certain provisions of the Indentures and the Debt Securities do not purport to
be complete and, while the Company believes the descriptions of the material
provisions of the Indentures and Debt Securities contained in this Prospectus
are accurate summaries of such material provisions, such summaries are subject
to the detailed provisions of the applicable Indenture to which reference is
hereby made for a full description of such provisions, including the definition
of certain terms used herein. Section references in parentheses below are to
sections in each Indenture unless otherwise indicated. Wherever particular
sections or defined terms of the applicable Indenture are referred to, such
sections or defined terms are incorporated herein by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference. The Indentures are substantially identical, except for provisions
relating to subordination.
Provisions Applicable to Senior, Senior Subordinated and Subordinated Debt
Securities
General. The Debt Securities will be unsecured senior, senior
subordinated or subordinated obligations of the Company and may be issued from
time to time in one or more series. Except to the extent set forth in the
applicable Prospectus Supplement, none of the Indentures limits the payment of
dividends or the acquisition of stock of the Company. Except to the extent set
forth in any Prospectus Supplement, the Indentures do not, and the Debt
Securities will not, contain any covenants or other provisions that are
intended to afford holders of the Debt Securities special protection in the
event of either a change of control of the Company or a highly leveraged
transaction by the Company.
<PAGE>
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities being offered (the
"Offered Debt Securities") (to the extent such terms are applicable to such
Offered Debt Securities): (i) the title of the Offered Debt Securities; (ii)
classification as Senior Debt Securities, Senior Subordinated Debt Securities
or Subordinated Debt Securities, aggregate principal amount, purchase price
and denomination; (iii) the date or dates on which the Offered Debt Securities
will mature; (iv) the method by which amounts payable in respect of principal,
premium, if any, or interest, if any, on or upon the redemption of such
Offered Debt Securities may be calculated; (v) the interest rate or rates
(or the method by which such will be determined), and the date or dates from
which such interest, if any, will accrue; (vi) the date or dates on which such
interest, if any, will be payable; (vii) the place or places where and the
manner in which the principal of, premium, if any, and interest, if any, on the
Offered Debt Securities will be payable and the place or places where the
Offered Debt Securities may be presented for transfer; (viii) the right, if any,
or obligation, if any, of the Company to redeem, repay or purchase the Offered
Debt Securities pursuant to any 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 will be determined, or
both) at which, the form or method of payment therefor if other than in cash
and the terms and conditions upon which the Offered Debt Securities will be
redeemed, repaid or purchased pursuant to any such obligation; (ix) the terms
for conversion or exchange, if any, of the Offered Debt Securities; (x) any
provision relating to the issuance of the Offered Debt Securities at an
original issue discount; (xi) if the amounts of payments of principal of,
premium, if any, and interest, if any, on the Offered Debt Securities are
to be determined with reference to an index, the manner in which such amounts
shall be determined; (xii) any applicable United States federal income tax
consequences; (xiii) the currency or currencies for which the Offered Debt
Securities may be purchased and the currency or currencies in which principal,
premium, if any, and interest, if any, may be payable; (xiv) the Subordinated
Debt Trustee and, if a trustee other than Chemical Bank with respect to any
series of Senior Debt Securities or United States Trust Company of New York
with respect to any series of Senior Subordinated Debt Securities is named for
such series of Offered Debt Securities, the name of such Trustee; and (xv) any
other specific terms of the Offered Debt Securities, including any deleted,
modified or additional events of default or remedies or additional covenants
provided with respect to such Offered Debt Securities, and any terms that may
be required by or advisable under applicable laws or regulations.
Unless otherwise specified in any Prospectus Supplement, the Debt
Securities will be issuable in registered form and in denominations of $1,000
and any integral multiple thereof (Section 2.7). No service charge will be
made for any transfer or exchange of any Debt Securities but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (Section 2.8).
Debt Securities may bear interest at a fixed rate or a floating rate.
Debt Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
<PAGE>
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
In determining whether the 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, the principal amount of any series of Debt Securities originally
issued at a discount from their stated principal amount that will be deemed to
be outstanding for such purposes will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities ("Global
Securities") that will be deposited with, or on behalf of, a depositary
(the "Depositary") identified in the Prospectus Supplement relating
to such series. Global Securities may be issued only in fully registered
form and in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for the individual Debt Securities represented
thereby, a Global Security (i) may not be transferred except as a whole and
(ii) may only be transferred (A) by the Depositary for such Global Security
to its nominee, (B) by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or (C) by such Depositary or any such
nominee to a successor Depositary or nominee of such successor Depositary
(Section 2.8).
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will
generally apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such Depositary. Such accounts shall be designated by the
dealers, underwriters or agents with respect to such Debt Securities or by the
Company if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the applicable Depositary
("participants") or persons that may hold interests through participants.
Ownership of beneficial interests in such Global Security will be shown on,
and the transfer of that ownership will be effected only through, records
maintained by the applicable Depositary or its nominee (with respect to
interests of participants) and the records of participants (with respect to
interests of persons other than participants). The laws of some states
require that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws may impair
the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities of the series represented by such Global Security for all purposes
<PAGE>
under the Indenture governing such Debt Securities. Except as provided below,
owners of beneficial interests in a Global Security will not be entitled to
have any of the individual Debt Securities of the series represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the Indenture
governing such Debt Securities.
Payment of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. The Company expects that the Depositary for
a series of Debt Securities or its nominee, upon receipt of any payment of
principal of, premium, if any, and interest, if any, in respect of a Global
Security representing any such Debt Securities, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
for such Debt Securities as shown on the records of such Depositary or its
nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name." Such payments will be the responsibility of
such participants. Neither the Company, the Trustee for such Debt Securities,
any paying agent nor the registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue individual Debt Securities of such series in exchange for the Global
Security representing such series of Debt Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities,
determine not to have any Debt Securities of a series represented by a Global
Security and, in such event, will issue individual Debt Securities of such
series in exchange for the Global Security representing such series of Debt
Securities. Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms acceptable to the
Company, the Trustee and the Depositary for such Global Security, receive
individual Debt Securities of such series in exchange for such beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
of individual Debt Securities of the series represented by such Global Security
equal in principal amount to such beneficial interest and to have such Debt
Securities registered in its name. Individual Debt Securities of such series
so issued will be issued in registered form and in denominations, unless
<PAGE>
otherwise specified in the applicable Prospectus Supplement relating to such
series of Debt Securities, of $1,000 and integral multiples thereof.
Events of Default. Unless otherwise specified in the applicable
Prospectus Supplement, an Event of Default is defined under each Indenture with
respect to the Debt Securities of any series issued under such Indenture as
being: (a) default in the payment of principal of or premium, if any, with
respect to Debt Securities of such series when due; (b) default in the payment
of any installment of interest upon any of the Debt Securities of such series
when due, continued for 30 days; (c) default in the payment or satisfaction of
any sinking fund or other purchase obligation with respect to Debt Securities
of such series when due; (d) default in the performance of any other covenant
of the Company applicable to Debt Securities of such series, continued for 90
days after written notice to the Company by the Trustee or to the Company and
the Trustee, by the holders of at least 25% in aggregate principal amount of
the Debt Securities of such series then outstanding requiring the same to be
remedied; (e) certain events of bankruptcy, insolvency or reorganization; and
(f) default under any bond, debenture, note or other evidence of indebtedness
for money borrowed by the Company or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed of the Company resulting in the
acceleration of such indebtedness, or any default in payment of such
indebtedness (after expiration of any applicable grace periods and presentation
of any debt instruments, if required), if the aggregate amount of all such
indebtedness that has been so accelerated and with respect to which there has
been such a default in payment shall exceed $15,000,000 and there has been a
failure to obtain rescission or annulment of all such accelerations or to
discharge all such defaulted indebtedness within 20 days after written notice
of the type specified in the foregoing clause (d) (Section 5.1).
If any Event of Default shall occur and be continuing, the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding, by notice in writing to the Company
(and to the Trustee, if given by the holders), may declare the principal (or,
in the case of any series of Debt Securities originally issued at a discount
from their stated principal amount, such portion of the principal amount as may
be specified in the terms of such series) of all of the Debt Securities of such
series and the interest, if any, accrued thereon to be due and payable
immediately; provided, however, that the holders of a majority in aggregate
principal amount of the Debt Securities of such series then outstanding, by
notice in writing to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all defaults under such Indenture are cured
or waived (Section 5.1).
Each Indenture provides that no holder of any series of Debt Securities
then outstanding may institute any suit, action or proceeding with respect to,
or otherwise attempt to enforce, such Indenture, unless (i) such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, (ii) the holders of not less than 25% in aggregate
principal amount of such series of Debt Securities then outstanding shall have
made written request to the Trustee to institute such suit, action or
proceeding and shall have offered to the Trustee such reasonable indemnity as
it may require with respect thereto and (iii) the Trustee for 60 days after its
<PAGE>
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; provided that,
subject to the subordination provisions applicable to the Senior Subordinated
Debt Securities and the Subordinated Debt Securities, the right of any holder
of any Debt Security to receive payment of the principal of, premium, if any,
or interest, if any, on such Debt Security, on or after the respective due
dates, or to institute suit for the enforcement of any such payment shall not
be impaired or affected without the consent of such holder (Section 5.4). The
holders of a majority in aggregate principal amount of the Debt Securities of
such series then outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of such series, provided that the Trustee may decline to follow such direction
if the Trustee determines that such action or proceeding is unlawful or would
involve the Trustee in personal liability (Section 5.7).
The Company is required to furnish to the Trustee annually a certificate
as to the compliance by the Company with all conditions and covenants under
each Indenture (Section 4.3).
Discharge and Defeasance. Unless otherwise specified in the applicable
Prospectus Supplement, the Company can discharge or defease its obligations
with respect to any series of Debt Securities as set forth below (Article Ten).
The Company may discharge all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under either
Indenture that have not already been delivered to the Trustee for cancellation
and that have either become due and payable, or are by their terms due and
payable within one year (or scheduled for redemption within one year), by
irrevocably depositing with the Trustee cash or U.S. Government Obligations (as
defined in such Indenture), or a combination thereof, as trust funds in an
amount certified to be sufficient to pay when due the principal of, premium, if
any, and interest, if any, on all outstanding Debt Securities of such series
and to make any mandatory sinking fund payments, if any, thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may also elect at any time to (a) defease and be discharged from all of
its obligations (except those set forth below) to holders of any series of Debt
Securities issued under each Indenture ("defeasance") or (b) be released
from all of its obligations with respect to certain covenants applicable to any
series of Debt Securities issued under each Indenture ("covenant
defeasance"), if, among other things: (i) the Company irrevocably deposits
with the Trustee cash or U.S. Government Obligations, or a combination thereof,
as trust funds in an amount certified to be sufficient to pay when due the
principal of, premium, if any, and interest, if any, on all outstanding Debt
Securities of such series and to make any mandatory sinking fund payments,
if any, thereon when due and such funds have been so deposited for 91 days;
(ii) such deposit will not result in a breach or violation of, or cause a
default under, any agreement or instrument to which the Company is a party
or by which it is bound; and (iii) the Company delivers to the Trustee an
opinion of counsel to the effect that the holders of such series of Debt
Securities will not recognize income, gain or loss for United States federal
income tax purposes as a result of such defeasance or covenant defeasance and
that defeasance or
<PAGE>
covenant defeasance will not otherwise alter the United States federal income
tax treatment of such holders' principal and interest payments, if any,
on such series of Debt Securities. Such opinion in the case of defeasance under
clause (a) above must be based on a ruling of the Internal Revenue Service or a
change in United States federal income tax law occurring after the date of the
Indenture relating to the Debt Securities of such series, since such a result
would not occur under current tax law (Section 10.1).
Notwithstanding the foregoing, no discharge, defeasance or covenant
defeasance described above shall affect the following obligations to or rights
of the holders of any series of Debt Securities: (i) rights of registration of
transfer and exchange of Debt Securities of such series, (ii) rights of
substitution of mutilated, defaced, destroyed, lost or stolen Debt Securities
of such series, (iii) rights of holders of Debt Securities of such series to
receive payments of principal thereof and premium, if any, and interest, if
any, thereon, upon the original due dates therefor (but not upon acceleration),
and to receive mandatory sinking fund payments thereon when due, if any, (iv)
rights, obligations, duties and immunities of the Trustee, (v) rights of
holders of Debt Securities of such series as beneficiaries with respect to
property so deposited with the Trustee payable to all or any of them and (vi)
obligations of the Company to maintain an office or agency in respect of Debt
Securities of such series (Section 10.1).
The Company may exercise its defeasance option with respect to any series
of Debt Securities notwithstanding its prior exercise of its covenant
defeasance option with respect to any series of Debt Securities. If the
Company exercises its defeasance option with respect to any series of Debt
Securities, payment of such series of Debt Securities may not be accelerated
because of an Event of Default with respect to such series of Debt Securities.
If the Company exercises its covenant defeasance option with respect to any
series of Debt Securities, payment of such series of Debt Securities may not be
accelerated by reason of an Event of Default with respect to the covenants to
which such covenant defeasance is applicable. However, if such acceleration
were to occur by reason of another Event of Default, the realizable value at
the acceleration date of the cash and U.S. Government Obligations in the
defeasance trust could be less than the principal of, premium, if any, and
interest, if any, and any mandatory sinking fund payments, if any, then due on
such series of Debt Securities, in that the required deposit in the defeasance
trust is based upon scheduled cash flow rather than market value, which will
vary depending upon interest rates and other factors.
Modification of the Indenture. Each Indenture provides that the Company
and the Trustee may enter into supplemental indentures without the consent of
the holders of the Debt Securities to (a) evidence the assumption by a
successor entity of the obligations of the Company under such Indenture, (b)
add covenants or new events of default for the protection of the holders of
such Debt Securities, (c) cure any ambiguity or correct any inconsistency in
the Indenture, (d) establish the form and terms of Debt Securities of any
series, (e) evidence the acceptance of appointment by a successor trustee, (f)
in the case of Senior Debt Securities, secure such Debt Securities, (g)
designate a bank or trust company other than Chemical Bank to act as Trustee
for a series of Senior Debt Securities, United States Trust Company of New York
to act as Trustee for a series of Senior Subordinated Debt Securities and the
<PAGE>
Subordinated Debt Trustee to act as Trustee for a series of Subordinated Debt
Securities and (h) modify the existing covenants and events of default solely
in respect of, or add new covenants and events of default that apply solely to,
Debt Securities not yet issued and outstanding on the date of such supplemental
indenture (Section 8.1).
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of each series then outstanding
and affected, to add any provisions to, or change in any manner or eliminate
any of the provisions of, such Indenture or of any supplemental indenture or
modify in any manner the rights of the holders of the Debt Securities of such
series; provided that the Company and the Trustee may not, without the consent
of the holder of each outstanding Debt Security affected thereby, (a) extend
the stated final maturity of any Debt Security, reduce the principal amount
thereof, reduce the rate or extend the time of payment of interest, if any,
thereon, reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Company, change the coin or currency
in which principal, premium, if any, and interest, if any, are payable, reduce
the amount of the principal of any original issue discount security payable
upon acceleration or provable in bankruptcy, impair or affect the right to
institute suit for the enforcement of any payment or repayment thereof or, if
applicable, adversely affect any right of prepayment at the option of the
holder or (b) reduce the aforesaid percentage in aggregate principal amount of
Debt Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification (Section 8.2).
Consolidation, Merger, Sale or Conveyance. Except as otherwise provided
in the applicable Prospectus Supplement, the Company may, without the consent
of the holders of Debt Securities, consolidate with, merge into or transfer,
exchange or dispose of all of its properties to, any other corporation
organized under the laws of the United States or any political subdivision
thereof or therein, provided that (i) the successor corporation assumes all
obligations of the Company under the Indentures and the Debt Securities, (ii)
after giving effect to such consolidation, merger, exchange or other
disposition, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing and (iii) certain other conditions are met.
Certain Definitions. Except as otherwise provided in the applicable
Prospectus Supplement, the following definitions are applicable to the
discussions of the Indentures (Article One).
"Consolidated Net Tangible Assets" means the aggregate amount of
assets included on the most recent consolidated balance sheet of the
Company 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.
"Indebtedness," with respect to any person, means, without
duplication:
<PAGE>
(a)(i) the principal of, premium, if any, and interest, if
any, on indebtedness for money borrowed of such person, indebtedness
of such person evidenced by bonds, notes, debentures or similar
obligations, and any guaranty by such person of any indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures
or similar obligations of any other person, whether any such
indebtedness or guaranty is outstanding on the date of the Indenture
or is thereafter created, assumed or incurred, (ii) the principal of
and premium 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 and (iii) lease obligations that such person capitalizes
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;
(b) any other indebtedness of such person, including any
indebtedness representing the balance deferred and unpaid of the
purchase price of any property or interest therein 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 the
Indenture or is thereafter created, assumed or incurred by such
person;
(c) obligations of such person under interest rate,
commodity or currency swaps, caps, collars, options and similar
arrangements;
(d) obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar
credit transaction; or
(e) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clauses (a) through (d) above.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary, and (b) any Subsidiary which was an Unrestricted
Subsidiary but which, subsequent to the date of the Indentures, is
designated by the Board of Directors of the Company to be a Restricted
Subsidiary; provided, however, that the Company may not designate any such
Subsidiary to be a Restricted Subsidiary if the Company would thereby
breach any covenant or agreement contained in the Indentures (on the
assumptions that any outstanding Indebtedness of such Subsidiary was
incurred at the time of such designation).
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own voting securities entitling any one or more of
the Company 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.
<PAGE>
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date of the Indentures, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to any
Restricted Subsidiary and (b) any Subsidiary substantially all the assets
of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the character described in clause (a) above, unless and
until such Subsidiary shall have been designated to be a Restricted
Subsidiary.
Provisions Applicable Solely to Senior Debt Securities
General. Senior Debt Securities will be issued under the Senior Debt
Indenture and will rank pari passu with all other unsecured and unsubordinated
debt of the Company.
Limitations on Liens. The Senior Debt Indenture provides that, so long as
any Senior Debt Securities are outstanding, the Company 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 Company or any Restricted
Subsidiary to secure any Indebtedness, without making effective provision
whereby outstanding Senior Debt Securities shall be equally and ratably
secured.
Under the terms of the Senior Debt Indenture, the foregoing limitation
does not apply to (a) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets created at the time of the acquisition
of such property or assets by the Company or any Restricted Subsidiary or
within one year after such time to secure all or a portion of the purchase
price for such property or assets; (b) any mortgage, pledge, security interest,
lien or encumbrance upon any property or assets existing thereon at the time of
the acquisition thereof by the Company or any Restricted Subsidiary (whether or
not the obligations secured thereby are assumed by the Company or any
Restricted Subsidiary); (c) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets, whenever acquired, of any corporation
or other entity that becomes a Restricted Subsidiary after the date of the
Senior Debt Indenture, 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 Company or another Restricted Subsidiary; (d) any mortgage,
pledge, security interest, lien or encumbrance arising from or in connection
with a conveyance by the Company or a Restricted Subsidiary of any production
payment with respect to oil, gas, natural gas, carbon dioxide, sulphur, helium,
coal, metals, minerals, steam, timber or other natural resources; (e) any
mortgage, pledge, security interest, lien or encumbrance in favor of the
Company or any wholly-owned subsidiary; (f) any mortgage, pledge, security
interest, lien or encumbrance created or assumed by the Company 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,
<PAGE>
in whole or in part, the acquisition or construction of property or assets to
be used by the Company or a Subsidiary; (g) any extension, renewal or refunding
of any mortgage, pledge, security interest, lien or encumbrance described in
the foregoing subparagraphs (a) through (f) on substantially the same property
or assets theretofore subject thereto; or (h) 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 foregoing
provisions, does not at the time of the incurrence of the Indebtedness so
secured exceed 20% of Consolidated Net Tangible Assets. For the purpose of
this provision, "security interest" will 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 Company or
any Restricted Subsidiary in contemplation of such lease shall be treated as
though the lessee had purchased such property or assets from the lessor.
(Section 3.6 of the Senior Debt Indenture).
Provisions Applicable Solely to Senior Subordinated and Subordinated Debt
Securities
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness of the Company. "Senior Indebtedness"
is defined in the Subordinated Debt Indenture as indebtedness incurred by
the Company for money borrowed whether outstanding on the date hereof or
incurred in the future, all deferrals, renewals or extensions of any such
indebtedness and all evidences of indebtedness issued in exchange for any such
indebtedness and guarantees by the Company of the foregoing items of
indebtedness for money borrowed by persons other than the Company, unless,
in any such case, such indebtedness or guarantee provides by its terms
that it shall not constitute Senior Indebtedness.
The Senior Subordinated Debt Securities will be subordinate and junior in
right of payment, to the extent set forth in the Senior Subordinated Debt
Indenture, to all Senior Indebtedness of the Company. The Senior Subordinated
Debt Securities will rank senior to all existing and future Indebtedness of the
Company that is neither Senior Indebtedness nor Senior Subordinated
Indebtedness, and only Indebtedness of the Company that is Senior Indebtedness
will rank senior to the Senior Subordinated Debt Securities in accordance with
the subordination provisions of the Senior Subordinated Debt Indenture.
"Senior Indebtedness" is defined in the Senior Subordinated Debt
Indenture as Indebtedness of the Company outstanding at any time except (a)
any Indebtedness as to which, by the terms of the instrument creating or
evidencing the same, it is provided that such Indebtedness is not senior in
right of payment to the Senior Subordinated Debt Securities, (b) the Senior
Subordinated Debt Securities, (c) any Indebtedness of the Company to a
wholly-owned Subsidiary of the Company, (d) interest accruing after the
filing of a petition initiating certain events of bankruptcy or insolvency
unless such interest is an allowed claim enforceable against the Company in
a proceeding under federal or state bankruptcy laws and (e) trade payables.
"Senior Subordinated Indebtedness" means the Senior Subordinated Debt
Securities and any other Indebtedness of the
<PAGE>
Company that ranks pari passu with the Senior Subordinated Debt Securities
(including the 1997 Notes and the 2000 Notes). Any Indebtedness of the Company
that is subordinate or junior by its terms in right of payment to any other
Indebtedness of the Company 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 Company which is
not Senior Indebtedness. "Subordinated Indebtedness" means the Senior
Subordinated Debt Securities, any other Senior Subordinated Indebtedness and
any other Indebtedness that is subordinate or junior in right of payment to
Senior Indebtedness.
If (i) the Company should default in the payment of any principal of,
premium, if any, or interest, if any, on any Senior Indebtedness (as defined in
the Senior Subordinated Debt Indenture or Subordinated Debt Indenture, as
applicable) 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 with respect to Senior Indebtedness shall occur and the
maturity of such Senior Indebtedness has been accelerated in accordance with
its terms, then, upon written notice of such default to the Company by the
holders of such Senior Indebtedness or any trustee therefor, unless and until
such default shall have been cured or waived or shall have ceased to exist or
such acceleration shall have been rescinded, no direct or indirect payment (in
cash, property, securities, by set-off or otherwise) will be made or agreed to
be made for principal of, premium, if any, or interest, if any, on any of the
Senior Subordinated Debt Securities or the Subordinated Debt Securities, or in
respect of any redemption, retirement, purchase or other acquisition of the
Senior Subordinated Debt Securities or the Subordinated Debt
Securities other than those made in capital stock of the Company (or
cash in lieu of fractional shares thereof) (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 default (other than a default described in the preceding
paragraph) under the Senior Indebtedness, pursuant to which the maturity
thereof may be accelerated immediately or the expiration of any applicable
grace periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt
by the Company 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 Company in accordance with the
following provisions of this paragraph, the Company may not make any payment or
take any other action that would be prohibited by the immediately preceding
paragraph 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 Company may resume payments on the
Senior Subordinated Debt Securities and the Subordinated Debt Securities after
such Payment Blockage Period.
<PAGE>
If (i) (A) without the consent of the Company, a receiver, conservator,
liquidator or trustee of the Company 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 Company 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 Company 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, and is not dismissed within 60
days after such filing; (ii) the Company (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 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
Company 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) will first be paid in full before any payment or distribution,
whether in cash, securities or other property, is made to any holder of Senior
Subordinated Debt Securities or Subordinated Debt Securities on account of the
principal of, premium, if any, or interest, if any, on such Senior Subordinated
Debt Securities or Subordinated Debt Securities, as the case may be. Any
payment or distribution, whether in cash, securities or other property (other
than securities of the Company 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 Senior Subordinated Debt Securities or the
Subordinated Debt 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) that would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the Senior
Subordinated Debt Securities or the Subordinated Debt Securities of any series
will 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) has 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 Senior Subordinated Debt Securities,
together with the holders of any obligations of the Company ranking on a parity
with the Senior Subordinated Debt Securities, will be entitled to be repaid
from the remaining assets of the Company the amounts at that time due and owing
on account of unpaid principal of, premium, if any, or interest, if any, on the
Senior Subordinated Debt 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 obligations of the Company ranking
<PAGE>
junior to the Senior Subordinated Debt Securities (including the Subordinated
Debt Securities) and such other obligations (Section 13.1 of the Senior
Subordinated Debt Indenture and Section 13.1 of the Subordinated Debt
Indenture).
If any payment or distribution of any character, whether in cash,
securities or other property (other than securities of the Company 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 Senior Subordinated Debt
Securities or Subordinated Debt 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 of any Senior Subordinated Debt Securities or
Subordinated Debt Securities in contravention of any of the terms of the Senior
Subordinated Debt Indenture or the Subordinated Debt Indenture, as the case may
be, such payment or distribution of securities will be received in trust for
the benefit of, and will 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 (Section 13.1 of the Senior Subordinated Debt
Indenture and Section 13.1 of the Subordinated Debt Indenture).
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Senior Subordinated Debt Securities or Subordinated Debt Securities.
Such subordination will not prevent the occurrence of any Event of Default (as
defined in the Indentures) or limit the right of acceleration in respect of the
Senior Subordinated Debt Securities or Subordinated Debt Securities.
Conversion
The terms and conditions, if any, upon which Debt Securities being offered
are convertible into Common Stock will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the conversion price, the
conversion period, provisions as to whether conversion will be at the option of
the holder or the Company, the event requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Debt Securities.
Concerning the Trustee
Chemical Bank, the Trustee under the Senior Indenture, may make loans to
the Company in the normal course of business. United States Trust Company of
New York, the Trustee under the Senior Subordinated Debt Indenture, serves as
trustee with respect to the Company's 9-3/4% Senior Subordinated Discount Notes
due 2000. If a bank or trust company other than Chemical Bank or United States
Trust Company of New York is to act as Trustee for a series of Debt Securities,
information concerning such other Trustee will be set forth in the Prospectus
Supplement relating to such series of Debt Securities.
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the Company's capital stock
are subject to the detailed provisions of the Company's Restated Articles of
Incorporation, as amended (the "Articles"), its Bylaws, as amended, the
Statement of Resolution Establishing and Designating the 5% convertible
preferred stock, no par value (the "Designation"), and the Preferred Stock
Preference Rights created pursuant to the Rights Agreement dated as of June 26,
1990, between the Company and NationsBank of Texas, N.A., as Rights Agent.
These statements do not purport to be complete and, while the Company believes
the descriptions of the material provisions of the Articles, Bylaws and
Designation contained in this Prospectus are accurate statements with respect
to such material provisions, such statements are subject to the detailed
provisions in the Articles, Bylaws and Designation to which reference is hereby
made for a full description of such provisions.
Preferred Stock
Under the Articles, the Company has authority to issue 5,000,000 shares of
preferred stock without par value. There were 522,460 shares of 5% convertible
preferred stock (the "Convertible Preferred Stock") outstanding at
August 18, 1994. No other shares of preferred stock are currently outstanding.
The Preferred Stock may be issued by resolutions of the Company's Board of
Directors from time to time without any action of the shareholders. Such
resolutions may authorize issuances in one or more classes or series of the
preferred stock and may fix and determine dividend and liquidation preferences,
voting rights, conversion privileges, redemption terms, and other privileges
and rights of the shareholders of each class or series so authorized.
The specific terms of a particular series of Preferred Stock offered
hereby will be described in a Prospectus Supplement relating to such series and
will include the following:
(i) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of the series, the
date or dates from which dividends will begin to accrue or accumulate and
the dates upon which such dividends shall be payable and whether dividends
will be cumulative;
(iii) Whether the shares of the series will be redeemable and, if
so, the price at and the terms and conditions on which the shares of the
series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(iv) The liquidation preference, if any, applicable to shares of
the series;
<PAGE>
(v) Whether the shares of the series will be subject to operation
of a retirement or sinking fund and, if so, the extent and manner in which
any such fund shall be applied to the purchase or redemption of the shares
of the series for retirement or for other corporate purposes, and the
terms and provisions relating to the operation of such fund;
(vi) The terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of any other
class or series of capital stock of Triton or another corporation or any
series of any other class or classes, or of any other series of the same
class, including the price or prices or the rates of conversion or
exchange and the method, if any, of adjusting the same;
(vii) The voting rights, if any, on the shares of the series; and
(viii) Any other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
Outstanding Preferred Stock
In March 1994, the Company issued 522,460 shares of its Convertible
Preferred Stock in connection with its acquisition of the minority interest in
Triton Europe plc.
Dividends. Holders of shares of Convertible Preferred Stock will be
entitled to receive, when, as, and if declared by the Board of Directors out of
funds of the Company legally available for payment, cumulative cash dividends
at the annual rate per share equal to 5 per cent of the Redemption Price
(defined below) of the shares payable semi-annually on September 30 and March
30 in each year, beginning September 30, 1994, except that if any such date is
a Saturday, Sunday, or legal holiday, then such dividend shall be payable on
the next day that is not a Saturday, Sunday, or legal holiday. Dividends will
accrue from the date on which the Convertible Preferred Stock was issued and
will be payable to holders of record as they appear on the stock books of the
Company on such record dates as are fixed by the Board of Directors. The
amount of dividends payable per share of Convertible Preferred Stock for each
semi-annual dividend period will be computed by dividing the annual dividend
amount by two. The amount of dividends payable for the initial dividend period
and for any period other than a full semi-annual dividend period will be
computed on the basis of a 360-day year of twelve 30-day months. No interest
will be payable in respect of any dividend payment on the Convertible Preferred
Stock which may be in arrears.
If dividends on the Convertible Preferred Stock shall not have been
declared and paid in full, or funds set aside for payment, by a date 15 days
after a dividend payment date (a "Calculation Date"), dividends payable on the
Convertible Preferred Stock shall be increased by an amount equal to the prime
rate of Morgan Guaranty Trust Company of New York plus 1 per cent as in effect
on each Calculation Date applied against the amount of dividends so due and
unpaid until such dividends shall be paid (the "Penalty Dividend").
The Convertible Preferred Stock will have priority as to dividends over
the Common Stock and any other series or class of the Company's stock hereafter
<PAGE>
issued which ranks junior as to dividends to the Convertible Preferred Stock
("junior dividend stock"), and no dividend (other than dividends payable solely
in junior dividend stock) may be paid on, and no purchase, redemption, or other
acquisition may be made by the Company of, any junior dividend stock unless all
accrued and unpaid dividends on the Convertible Preferred Stock have been paid
or declared and set apart for payment. The Company may not pay dividends on
any class or series of its stock having parity with the Convertible Preferred
Stock as to dividends ("parity dividend stock"), unless it has paid or declared
and set apart for payment or contemporaneously pays or declares and sets apart
for payment all accrued and unpaid dividends for all prior periods on the
Convertible Preferred Stock and may not pay dividends on the Convertible
Preferred Stock unless it has paid or declared and set apart for payment or
contemporaneously pays or declares and sets apart for payment all accrued and
unpaid dividends for all prior periods on the parity dividend stock. Whenever
all accrued dividends are not paid in full on the Convertible Preferred Stock
or any parity dividend stock, all dividends declared on the Convertible
Preferred Stock and such parity dividend stock will be declared or made pro
rata so that the amount of dividends declared per share on the Convertible
Preferred Stock and such parity dividend stock will bear the same ratio that
accrued and unpaid dividends per share on the Convertible Preferred Stock and
such parity dividend stock bear to each other. The Convertible Preferred Stock
will be junior as to dividends to any series or class of the Company's stock
hereafter issued which ranks senior as to dividends to the Convertible
Preferred Stock ("senior dividend stock"), and if at any time the Company has
failed to pay or declare and set apart for payment accrued and unpaid dividends
on any senior dividend stock, the Company may not pay any dividend on the
Convertible Preferred Stock.
Liquidation Rights. In case of the voluntary or involuntary
liquidation, dissolution, or winding up of the Company, holders of
shares of Convertible Preferred Stock are entitled to receive an
amount per share equal to the Redemption Price to the payment date
(the "Liquidation Price"), before any payment or distribution is made
to the holders of Common Stock or any other series or class of the
Company's stock hereafter issued which ranks junior as to liquidation
rights to the Convertible Preferred Stock, but the holders of the shares
of the Convertible Preferred Stock will not be entitled to receive the
Liquidation Price of such shares until the liquidation price of any other
series or class of the Company's stock hereafter issued which ranks senior
as to liquidation rights to the Convertible Preferred Stock ("senior liquidation
stock") has been paid in full. The holders of Convertible Preferred Stock and
all series or classes of the Company's stock hereafter issued which rank on a
parity as to liquidation rights with the Convertible Preferred Stock are
entitled to share ratably, in accordance with the respective preferential
amounts payable on such stock, in any distribution (after payment of the
liquidation price of the senior liquidation stock) which is not sufficient to
pay in full the aggregate of the amounts payable thereon. After payment in
full of the Liquidation Price of the shares of the Convertible Preferred Stock,
the holders of such shares will not be entitled to any further participation in
any distribution of assets by the Company. Neither a consolidation or merger
of the Company with another corporation nor a sale or transfer of all or part
of the Company's assets for cash, securities, or other property will be
considered a liquidation, dissolution, or winding up of the Company.
<PAGE>
Redemption. The Company may, at its option, redeem the Convertible
Preferred Stock, in whole or in part, at any time on or after March 30, 1998 or
such earlier date after which at least 75 per cent of the shares of Convertible
Preferred Stock initially issued shall have been converted into shares of
Common Stock. The redemption price payable upon such optional redemption shall
be the Redemption Price to the redemption date. Such redemption price shall be
payable in cash.
The Convertible Preferred Stock shall be subject to mandatory redemption
by the Company on March 30, 2004. At the option of the Company, such
redemption may be for (i) cash at the Redemption Price on the redemption date;
(ii) such number of shares of Common Stock whose aggregate value (based on the
then current market price determined as set forth in the Designation) equals
the Redemption Price; or (iii) a combination of cash and shares of Common Stock
equal to the Redemption Price. The Redemption Price equals $34.41 per share
plus any accumulated and unpaid dividends thereon (including Penalty
Dividends).
Voting and Other Rights. The holders of Convertible Preferred Stock will
have no voting rights except as described below or as required by Texas law.
In exercising any such vote, each outstanding share of Convertible Preferred
Stock will be entitled to one vote.
So long as any shares of Convertible Preferred Stock are outstanding, the
Company will not, without the affirmative vote or consent of the holders of at
least two-thirds of the outstanding shares of Convertible Preferred Stock,
voting or consenting separately as a class with holders of any other class of
the Company's preferred stock similarly affected, issue other than wholly for
cash consideration, any shares of any class of senior dividend stock or senior
liquidation stock, or amend the Articles in a manner adversely affecting the
rights of such shareholders.
The Articles may be amended to increase the number of authorized shares of
the Company's preferred stock without the vote of the holders of the
outstanding Convertible Preferred Stock.
The holders of the shares of the Convertible Preferred Stock have no pre-
emptive rights with respect to any shares of capital stock of the Company or
any other securities of the Company convertible into or carrying rights or
options to purchase any such shares.
Conversion Rights. Commencing on October 1, 1994, the holders of
Convertible Preferred Stock will be entitled to convert their shares of
Convertible Preferred Stock into Common Stock subject to the qualifications
described below, except that, with respect to shares of Convertible Preferred
Stock called for redemption, conversion rights will expire at the close of
business on the fifth day prior to the redemption date (unless the Company
defaults in the payment of the redemption price). No payment or adjustment
will be made in respect of dividends on the Common Stock or Convertible
Preferred Stock that may be accrued or unpaid or in arrears upon conversion of
shares of Convertible Preferred Stock except as set forth below. No fractional
shares will be issued and, in lieu of any fractional share, the Company will
pay a cash adjustment based on the then current market price (determined as set
forth in the Designation) of the Common Stock.
<PAGE>
Each share of Convertible Preferred Stock shall be convertible initially
into one share of Common Stock; however, the number of shares of Common Stock
issuable on conversion of each share of Convertible Preferred Stock (the
"Conversion Rate") shall be subject to adjustment as described below.
The Conversion Rate is subject to adjustment in certain circumstances,
including in respect of any dividends not declared and paid in full in respect
of any dividend payment date occurring prior to the date of conversion and any
Penalty Dividends payable thereon, upon the issuance of shares of Common Stock
as a stock dividend, in connection with combinations and subdivisions of the
Common Stock, upon certain reclassifications of the Common Stock, upon the
issuance to the Company's stockholders of rights or warrants to subscribe for
or purchase shares of Common Stock at a price per share less than the then
current market price of the Common Stock (as determined in the Designation),
and in connection with certain distributions to the Company's stockholders of
evidences of indebtedness or assets. Except in the case of the adjustment in
respect of dividends, no adjustment in the Conversion Price will be required
unless it would result in at least a 1 percent increase or decrease in the
Conversion Price; however, any adjustment not made will be carried forward.
In case of any consolidation or merger of the Company with any other
corporation, or in the case of any merger of another corporation into the
Company (other than a merger with a corporation in which merger the Company is
the continuing corporation and which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock), or
in the case of a sale or conveyance of all or substantially all of the assets
of the Company to another corporation, the Company will be required to make
proper provisions so that the holder of each share of Convertible Preferred
Stock then outstanding will have the right thereafter to convert such share of
Convertible Preferred Stock into the kind or amount of shares of stock and
other securities and property receivable upon such consolidation, merger, sale
or conveyance by a holder of the number of shares of Common Stock into which
such share of Convertible Preferred Stock might have been converted immediately
prior to such consolidation, merger, sale or conveyance.
Preferred Stock Purchase Rights
In June 1990, the Board of Directors of the Company adopted a Shareholder
Rights Plan pursuant to which preferred stock purchase rights attach to all
shares of Common Stock at the rate of one right for each share of Common Stock.
Chemical Bank is the Rights Agent for the Preferred Stock Purchase Rights.
Generally, the rights only become distributable ten days following public
announcement that a person has acquired beneficial ownership of 15% or more of
the Common Stock or ten days following commencement of a tender offer for 15%
or more of the outstanding Common Stock. If, among other events, any person
becomes the beneficial owner of 15% or more of Common Stock, each right not
owned by such person generally becomes the right to purchase such number of
shares of Common Stock that is equal to the amount obtained by dividing the
right's exercise price (currently $40) by 50% of the market price of the Common
Stock on the date of the first occurrence. In addition, if the Company is
subsequently merged or certain other extraordinary business transactions are
consummated, each right generally becomes a right to purchase such number of
<PAGE>
shares of common stock of the acquiring person that is equal to the amount
obtained by dividing the right's exercise price by 50% of the market price of
such common stock on the date of the first occurrence. Under certain
circumstances, the Company's directors may determine that a tender offer or
merger is fair to all shareholders and prevent the rights from being exercised.
Any shares of preferred stock issued pursuant to the Shareholders Rights
Plan will rank junior as to dividends and liquidation to the Convertible
Preferred Stock.
The Company will be entitled to redeem the rights at $0.01 a right at any
time until the tenth day following the public announcement that a 15% position
has been acquired or a tender offer has been commenced. The rights will expire
on June 26, 2000.
Common Stock
General. The Articles authorize the Company to issue up to 200,000,000
shares of Common Stock, par value $1.00 per share, of which 35,502,755 shares
were outstanding (excluding 45,830 treasury shares) at September 30, 1994.
Any authorized but unissued shares of Common Stock (along with any
authorized but unissued shares of preferred stock) could be used to make more
difficult a change in control of the Company. Under certain circumstances,
such shares could be used to dilute voting stock ownership (including voting
power) or otherwise to inhibit persons seeking to effect a takeover or
otherwise to gain control of the Company. See "Preferred Stock Purchase
Rights" above.
The Transfer Agent and Registrar for the Common Stock is Chemical Bank.
Voting and Other Rights. Each shareholder is entitled to one vote for
each share of Common Stock held by such holder. Because shareholders are not
entitled to cumulate their votes, shareholders holding a majority of the
outstanding shares of Common Stock and any shares of voting preferred stock
that may be issued are able to elect all members of the Board of Directors.
The Company's Bylaws provide that the directors are to be elected in three
classes of as nearly equal a number as possible and for a term of three years.
Holders of Common Stock have no preemptive rights, and shares of Common Stock
have no redemption, sinking fund or conversion privileges.
In the event of any liquidation, dissolution or winding up of the
Company's affairs, subject to the rights of holders of any preferred stock
issued, the holders of Common Stock are entitled to receive pro rata any assets
of the Company after the satisfaction of corporate liabilities.
Dividend Rights. Subject to the rights of holders of any preferred
stock, all shares of Common Stock are entitled to share equally in dividends
from sources legally available therefor when, as and if declared by the Board of
Directors. Under Texas law, the Company may declare and pay dividends on its
shares of capital stock out of its surplus (which totalled approximately
$203 million as of August 31, 1994). The payment of cash
dividends is also restricted by covenants in loan documents and indentures
to which the Company is a party.
<PAGE>
Convertible Debentures
The Company has a convertible debenture plan under which key management
personnel may purchase debentures that are convertible into shares of Common
Stock. The aggregate number of additional shares of Common Stock issuable upon
the conversion of the debentures cannot exceed 500,000 shares, subject to
adjustment in certain events.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities or Warrants to purchase Common Stock or Preferred Stock. Warrants
may be issued independently of or together with any other Securities and may be
attached to or separate from such Securities. Each series of Warrants will be
issued under a separate Warrant Agreement (each a "Warrant Agreement")
to be entered into between the Company and a Warrant Agent ("Warrant
Agent"). The Warrant Agent will act solely as an agent of the Company in
connection with the Warrant of such series and will not assume any obligation
or relationship of agency or trust for or with holders or beneficial owners of
Warrants. The following sets forth certain general terms and provisions of
the Warrants offered hereby. Further terms of the Warrants and the applicable
Warrant Agreement will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Warrants in respect of which this Prospectus is being
delivered: (i) the title of such Warrants; (ii) the aggregate number of such
Warrants; (iii) the price or prices at which such Warrants will be issued; (iv)
the designation, aggregate principal amount and terms of the securities
purchasable upon exercise of such Warrants; (v) the designation and terms of
the Securities with which such Warrants are issued and the number of such
Warrants issued with each such security; (vi) if applicable, the date on and
after which such Warrants and the related securities will be separately
transferable; (vii) the price at which the securities purchasable upon exercise
of such Warrants may be purchased; (viii) the date on which the right to
exercise such Warrants shall commence and the date on which such right shall
expire; (ix) the minimum or maximum amount of such Warrants which may be
exercised at any one time; (x) information with respect to book-entry
procedures, if any; (xi) a discussion of certain Federal income tax
considerations; and (12) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities to or through underwriters or dealers,
and also may sell the Securities directly to one or more other purchasers or
through agents. The applicable Prospectus Supplement will set forth the names
of any underwriters or agents involved in the sale of the Offered Securities
and any applicable commissions or discounts.
Underwriters, dealers or agents may offer and sell the Offered Securities
at a fixed price or prices, which may be changed, or from time to time at
market prices prevailing at the time of sale, at prices related to such
<PAGE>
prevailing market prices or at negotiated prices. In connection with the sale
of the Securities, underwriters or agents may be deemed to have received
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters or agents may sell the Securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agent.
The Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Securities are sold by
the Company for public offering and sale may make a market in such Securities,
but such underwriters or agents will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Any underwriters, dealers or agents participating in the distribution of
the Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the "1933 Act"). Underwriters,
dealers or agents may be entitled, under agreements entered into with the
Company, to indemnification against or contribution toward certain civil
liabilities, including liabilities under the 1933 Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases will be subject to the
condition that the purchase of the Securities shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such agents will not have any responsibility in
respect of the validity or performance of such contracts.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Securities will
be passed upon for the Company by Simpson Thacher & Bartlett (a partnership
which includes professional corporations), 425 Lexington Avenue, New York, New
York. Simpson Thacher & Bartlett will rely upon Jackson & Walker, L.L.P.,
with respect to matters of Texas law. Robert B. Holland III, Senior
Vice President and General Counsel of the Company, is a partner of Jackson
& Walker, L.L.P. and may be deemed to beneficially own, directly or indirectly,
48,015 shares of the Company's Common Stock, of which 43,750 shares are subject
to options or convertible debentures.
<PAGE>
EXPERTS
The consolidated financial statements of Triton Energy Corporation for
the years ended May 31, 1994 and 1993, incorporated herein by reference to the
Company's Annual Report on Form 10-K for the year ended May 31, 1994, have been
so incorporated in reliance upon the report (which included an audit of the
adjustments that were applied to restate the 1992 financial statements for
discontinued wholesale fuel products operations as described in Notes 1 and 3
of the financial statements) of Price Waterhouse LLP ("Price Waterhouse"),
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
With respect to the unaudited consolidated financial information of
Triton Energy Corporation for the three month periods ended August 31, 1994
and 1993 incorporated by reference in this prospectus, Price Waterhouse
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their
separate report dated October 3, 1994 incorporated by reference herein,
states that they did not audit and they do not express an opinion on that
unaudited consolidated financial information. Price Waterhouse has not
carried out any significant or additional tests beyond those which would
have been necessary if their report had not been included. Accordingly,
the degree of reliance on their report on such information should be
restricted in light of the limited nature of the review procedures
applied. Price Waterhouse is not subject to the liability provisions of
section 11 of the Securities Act for their report on the unaudited
consolidated financial information because that report is not a "report"
or a "part" of the registration statement prepared or certified by Price
Waterhouse within the meaning of sections 7 and 11 of the Securities Act.
The consolidated statements of operations, shareholders' equity and cash
flows of Triton Energy Corporation for the year ended May 31, 1992 (before
restatement for discontinued wholesale fuel products operations), incorporated
herein by reference to the Company's Annual Report on Form 10-K for the year
ended May 31, 1994, have been so incorporated in reliance upon the report of
KPMG Peat Marwick LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
The consolidated statements of earnings, shareholders' equity and cash
flows of Crusader Limited for the year ended May 31, 1992, incorporated herein
by reference to the Company's Annual Report on Form 10-K for the year ended May
31, 1994, have been so incorporated in reliance upon the report of KPMG Peat
Marwick, independent accountants, given on the authority of said 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 by reference herein in
reliance upon such firm as experts with respect to the matters contained
therein.
Certain information with respect to the gas and oil reserves of Triton and
its subsidiaries derived from the report of McDaniel & Associates Consultants,
Ltd., independent petroleum engineers, has been incorporated by reference
herein in reliance upon such firm as experts with respect to the matters
contained therein.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses payable by the Company in connection with the
offering described in this Registration Statement are as follows:
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . $ 44,069
Legal fees and expenses . . . . . . . . . . . . . 250,000
Blue Sky fees and expenses . . . . . . . . . . . . 15,000
Accounting fees and expenses . . . . . . . . . . . 20,000
Printing and duplicating expenses . . . . . . . . 200,000
Miscellaneous expenses . . . . . . . . . . . . . . 5,000
---------
Total . . . . . . . . . . . . . . . . . . . . . . $534,069
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides that any
director or officer of a Texas corporation may be indemnified against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to
any proceeding arising from actions taken in his official capacity, as a
director or officer, he may be indemnified so long as it shall be determined
that he conducted himself in good faith and that he reasonably believed that
such conduct was in the corporation's best interest. In cases not concerning
conduct in his official capacity as a director or officer, a director or
officer may be indemnified so long as it shall be determined that he conducted
himself in good faith and that he reasonably believed that his conduct was not
opposed to the corporation's best interest. In the case of any criminal
proceeding, a director or officer may be indemnified if he had no reasonable
cause to believe his conduct was unlawful. If a director or officer is wholly
successful, on the merits or otherwise, in connection with such a proceeding,
such indemnification is mandatory.
Article III of the Company's Bylaws requires the indemnification of
officers and directors to the fullest extent permitted by the Texas Business
Corporation Act. The Company also has policies insuring its officers and
directors against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act of 1933, as amended.
<PAGE>
Article VIII of the Company's Certificate of Restated Articles of
Incorporation requires the indemnification of directors to the fullest extent
permitted by the Texas Miscellaneous Corporation Laws Act and the Texas
Business Corporation Act.
Effective as of August 28, 1989, Article 7.06.B of the Texas Miscellaneous
Corporation Laws Act was amended to read in its entirety as follows:
"B. The articles of incorporation of a corporation may provide
that a director of the corporation shall not be liable, or shall be
liable only to the extent provided in the articles of incorporation,
to the corporation or its shareholders or members for monetary
damages for an act or omission in the director's capacity as a
director, except that this article does not authorize the elimination
or limitation of the liability of a director to the extent the
director is found liable for:
(1) a breach of the director's duty of loyalty to the
corporation or its shareholders or members;
(2) an act or omission not in good faith that
constitutes a breach of duty of the director to the
corporation or an act or omission that involves intentional
misconduct or a knowing violation of the law;
(3) a transaction from which the director received an
improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office;
or
(4) an act or omission for which the liability of a
director is expressly provided for by an applicable
statute."
Item 16. Exhibits.
<TABLE>
<S> <C>
1.1 - Form of Underwriting Agreement (Debt Securities and
Warrants to Purchase Debt Securities).
1.2 - Form of Underwriting Agreement (Equity Securities and
Warrants to Purchase Equity Securities).
4.1 - Form of Debt Securities (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on
Form S-3 (Registration No. 33-69230) (the "S-3 Registration
Statement")).
4.2 - Form of Senior Indenture by and between the Company and
Chemical Bank, as Trustee (incorporated by reference to
Exhibit 4.2 of the S-3 Registration Statement).
<PAGE>
4.3 - Senior Subordinated Indenture by and between the Company
and United States Trust Company of New York, dated as of
December 15, 1993 (incorporated by reference to Exhibit 4.9
of the Company's Quarterly Report on Form 10-Q for the
quarterly period ended November 30, 1993 (File No. 1-
7864)).
4.4 - Form of Subordinated Indenture by and between the Company
and ___________, as Trustee.
4.5 - Form of Warrant Agreement for Preferred Stock and Common
Stock (including form of Warrant Certificate).
4.6 - Form of Warrant Agreement for Debt Securities (including
form of Warrant Certificate).
5.1 - Opinion of Jackson & Walker, L.L.P., as to the validity of
the Debt Securities, Preferred Stock and Common Stock.
12.1 - Computation of Ratio of Earnings to Fixed Charges.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.
15.1 - Letter of Price Waterhouse LLP acknowledging awareness of
the use of their report dated October 3, 1994.
23.1 - Consent of Price Waterhouse LLP.
23.2 - Consent of KPMG Peat Marwick LLP, Dallas, Texas.
23.3 - Consent of KPMG Peat Marwick, Brisbane, Australia.
23.4 - Consent of Jackson & Walker, L.L.P. (included in Exhibit
5.1).
23.5 - Consent of DeGolyer and MacNaughton, independent petroleum
engineers.
23.6 - Consent of McDaniel & Associates Consultants Ltd.,
independent petroleum engineers.
24.1 - Powers of Attorney included in signature page of initial
filing.<F1>
25.1 - Statements of eligibility of Chemical Bank as Trustee.
25.2 - Statements of eligibility of United States Trust Company of
New York as Trustee.
____________________
<FN>
<F1> Previously filed.
</TABLE>
<PAGE>
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;
(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 registrant 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
registrant's 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 the
registrant pursuant to the provisions set forth in response to Item 15, or
otherwise, the registrant 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
<PAGE>
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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, the
registrant 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 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 has duly caused this
Amendment No. 1 to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Dallas, State of Texas,
on October 18, 1994.
TRITON ENERGY CORPORATION
By: /s/ Thomas G. Finck
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to its Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------ -------------------------------- ---------------
<S> <C> <C>
/s/ Thomas G. Finck President, Chief Executive October 18, 1994
(Thomas G. Finck) Officer, Director
/s/ Peter Rugg* Senior Vice President and October 18, 1994
(Peter Rugg) Chief Financial Officer
(Principal Financial and
Accounting Officer)
Director
(Herbert L. Brewer)
/s/ Ernest E. Cook* Director October 18, 1994
(Ernest E. Cook)
/s/ Ray H. Eubank* Director October 18, 1994
(Ray H. Eubank)
/s/ Jesse E. Hendricks* Director October 18, 1994
(Jesse E. Hendricks)
Director
(William I. Lee)
/s/ John P. Lewis* Director October 18, 1994
(John P. Lewis)
<PAGE>
Director
(Michael E. McMahon)
Director
(Graeme O. Morris)
Director
(Wellslake D. Morse, Jr.)
Director
(J.G.A. Tucker)
/s/ Fitzgerald S. Hudson* Director October 18, 1994
(Fitzgerald S. Hudson)
/s/ J. Otis Winters* Director October 18, 1994
(J. Otis Winters)
*/s/ Thomas G. Finck October 18, 1994
(Thomas G. Finck)
as attorney in fact
</TABLE>
<PAGE>
INDEX TO EXHIBITS
[CAPTION]
Sequentially
Exhibit Numbered
Number Description of Exhibits Pages
- ------ --------------------------------------------- ------------
[S] [C] [C]
1.1 -- Form of Underwriting Agreement (Debt Securities
and Warrants to Purchase Debt Securities).
1.2 -- Form of Underwriting Agreement (Equity
Securities and Warrants to Purchase Equity
Securities).
4.4 -- Form of Subordinated Indenture by and between
the Company and ___________, as Trustee.
4.5 -- Form of Warrant Agreement for Preferred Stock
and Common Stock (including form of Warrant
Certificate).
4.6 -- Form of Warrant Agreement for Debt Securities
(including form of Warrant Certificate).
5.1 -- Opinion of Jackson & Walker, L.L.P., as to the
validity of the Debt Securities, Preferred
Stock and Common Stock.
12.1 -- Computation of Ratio of Earnings to Fixed
Charges.
12.2 -- Computation of Ratio of Earnings to Combined
Fixed Charges and Preferred Dividends.
15.1 -- Letter of Price Waterhouse LLP acknowledging
awareness of the use of their report dated
October 3, 1994.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of KPMG Peat Marwick LLP, Dallas,
Texas.
23.3 -- Consent of KPMG Peat Marwick, Brisbane,
Australia.
23.4 -- Consent of Jackson & Walker, L.L.P. (included
in Exhibit 5.1)
23.5 -- Consent of DeGolyer and MacNaughton,
independent petroleum engineers.
<PAGE>
23.6 -- Consent of McDaniel & Associates Consultants
Ltd., independent petroleum engineers.
25.1 -- Statements of eligibility of Chemical Bank as
Trustee.
25.2 -- Statements of eligibility of United States
Trust Company of New York as Trustee.
<PAGE>
Exhibit 12.1
TRITON ENERGY CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Thousands, except ratios)
<TABLE>
<CAPTION>
Three months ended
August 31, Years ended May 31,
--------------------- --------------------------------------------------------------
1994 1993 1994 1993 1992 1991 1990
--------- --------- --------- ----------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined <F1>:
Interest charges . . . . . . . . . . $ 8,713 $ 5,889 $ 26,951 $ 16,336 $ 11,066 $28,056 $ 33,181
Preferred dividend requirements of
subsidiaries adjusted to
pre-tax basis . . . . . . . . . . . -- 364 364 1,551 1,780 2,330 2,498
------- ------- -------- --------- -------- ------- --------
Total fixed charges . . . . . . . 8,713 6,253 27,315 17,887 12,846 30,386 35,679
======= ======= ======== ========= ======== ======= ========
Earnings as defined <F1><F3>:
Earnings (loss) from continuing
operations before income taxes,
minority interest, extraordinary
items and cumulative effect of
accounting change . . . . . . . . (6,682) 33,748 (27,198) (152,778) (97,387) 16,511 (52,901)
Fixed charges, above . . . . . . . . 8,713 6,253 27,315 17,887 12,846 30,386 35,679
Less interest capitalized . . . . . (5,438) (1,952) (16,863) (6,407) (6,529) (5,879) (7,180)
Plus undistributed (earnings)
loss of affiliates . . . . . . . . (648) (362) (645) 3,012 2,558 (2,604) (246)
Less preferred dividend
requirements of subsidiaries
adjusted to pre-tax basis . . . . -- (364) (364) (1,551) (1,780) (2,330) (2,498)
------- ------- -------- --------- -------- ------- --------
$(4,055) $37,323 $(17,755) $(139,837) $(90,292) $36,084 $(27,146)
------- ------- -------- --------- -------- ------- --------
Ratio of earnings to fixed
charges <F2><F3> . . . . . . . . . . -- 6.0 -- -- -- 1.2 --
======= ======= ======== ========= ======== ======= ========
<PAGE>
____________________
<FN>
<F1> Earnings include the Company's equity in the losses of an affiliate
whose debt is guaranteed by the Company. Related interest charges for
the years ended May 31, 1992, 1991 and 1990 of $819,000, $802,000 and
$240,000, respectively, were excluded from fixed charges due to the
improbability that such guarantees would be honored.
<F2> Earnings were inadequate to cover fixed charges for the three months
ended August 31, 1994 by $12,768,000 and for the years ended May 31,
1994, 1993, 1992 and 1990 by $45,070,000, $157,724,000, $103,138,000 and
$62,825,000, respectively.
<F3> Earnings reflect nonrecurring writedowns and loss provisions of $984,000
and $12,262,000 for the three months ended August 31, 1994 and 1993,
respectively, and for the years ended May 31, 1994, 1993, 1992, 1991 and
1990 of $45,754,000, $110,695,000, $67,178,000, $7,930,000 and
$38,210,000, respectively. Nonrecurring gains from the sales of assets
aggregated $52,051,000 for the three months ended August 31, 1993 and
for the years ended May 31, 1994 and 1991 aggregated $56,193,000 and
$28,351,000, respectively. The ratio of earnings to fixed charges if
adjusted to remove nonrecurring items, would have been 0.5 in 1991 and
0.3 in 1990. Without nonrecurring items, earnings would have been
inadequate to cover fixed charges for the three months ended August 31,
1994 and 1993 by $11,784,000 and $8,719,000, respectively, and for the
years ended May 31, 1994, 1993, 1992, 1991 and 1990 by $55,509,000,
$47,029,000, $35,960,000, $14,723,000 and $24,615,000, respectively.
</TABLE>
<PAGE>
Exhibit 12.2
TRITON ENERGY CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends
(Thousands, except ratios)
<TABLE>
<CAPTION>
Three months ended
August 31, Years ended May 31,
--------------------- ------------------------------------------------------------
1994 1993 1994 1993 1992 1991 1990
--------- --------- --------- ----------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined <F1>:
Interest charges . . . . . . . . . . . $ 8,713 $ 5,889 $ 26,951 $ 16,336 $ 11,066 $28,056 $ 33,181
Preferred dividend requirements of the
Company . . . . . . . . . . . . . . . -- -- -- -- 1,386 5,546 5,398
Preferred dividend requirements of
subsidiaries adjusted to pre-tax
basis . . . . . . . . . . . . . . . . -- 364 364 1,551 1,780 2,330 2,498
------- ------- -------- --------- -------- ------- --------
Total fixed charges . . . . . . . . 8,713 6,253 27,315 17,887 14,232 35,932 41,077
======= ======= ======== ========= ======== ======= ========
Earnings as defined <F1><F3>:
Earnings (loss) from continuing
operations before income taxes,
minority interest, extraordinary
item and cumulative effect of
accounting change . . . . . . . . . (6,682) 33,748 (27,198) (152,778) (97,387) 16,511 (52,901)
Fixed charges, above . . . . . . . . . 8,713 6,253 27,315 17,887 14,232 35,932 41,077
Less interest capitalized . . . . . . (5,438) (1,952) (16,863) (6,407) (6,529) (5,879) (7,180)
Plus undistributed (earnings) loss of
affiliates . . . . . . . . . . . . . (648) (362) (645) 3,012 2,558 (2,604) (246)
Less preferred dividend requirements
of the Company and its subsidiaries
adjusted to pre-tax basis . . . . . -- (364) (364) (1,551) (3,166) (7,876) (7,896)
------- ------- -------- --------- -------- ------- --------
$(4,055) $37,323 $(17,755) $(139,837) $(90,292) $36,084 $(27,146)
------- ------- -------- --------- -------- ------- --------
Ratio of earnings to fixed
charges <F2><F3> . . . . . . . . . . . -- 6.0 -- -- -- 1.0 --
======= ======= ======== ========= ======== ======= ========
<PAGE>
____________________
<FN>
<F1> Earnings include the Company's equity in the losses of an affiliate
whose debt is guaranteed by the Company. Related interest charges for
the years ended May 31, 1992, 1991 and 1990 of $819,000, $802,000 and
$240,000, respectively, were excluded from fixed charges due to the
improbability that such guarantees would be honored.
<F2> Earnings were inadequate to cover fixed charges and preferred dividends
for the three months ended August 31, 1994 by $12,768,000 and for the
years ended May 31, 1994, 1993, 1992 and 1990 by $45,070,000,
$157,724,000, $104,524,000 and $68,223,000, respectively.
<F3> Earnings reflect nonrecurring writedowns and loss provisions of $984,000
and $12,262,000 for the three months ended August 31, 1994 and 1993,
respectively, and for the years ended May 31, 1994, 1993, 1992, 1991 and
1990 of $45,754,000, $110,695,000, $67,178,000, $7,930,000 and
$38,210,000, respectively. Nonrecurring gains from the sales of assets
aggregated $52,051,000 for the three months ended August 31, 1993 and
for the years ended May 31, 1994 and 1991 aggregated $56,193,000 and
$28,351,000, respectively. The ratio of earnings to fixed charges and
preferred dividends if adjusted to remove nonrecurring items would have
been 0.4 in 1991 and 0.3 in 1990. Without nonrecurring items, earnings
would have been inadequate to cover fixed charges and preferred
dividends for the three months ended August 31, 1994 and 1993 by
$11,784,000 and $8,719,000, respectively, and for the years ended
May 31, 1994, 1993, 1992, 1991 and 1990 by $55,509,000, $47,029,000,
$37,346,000, $20,269,000 and $30,013,000, respectively.
</TABLE>
<PAGE>
EXHIBIT 15.1
October 17, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Triton Energy Corporation has included our report dated
October 3, 1994 (issued pursuant to the provisions of Statement on Auditing
Standards No. 71) in the Prospectus constituting part of its Registration
Statement on Form S-3 to be filed on or about October 18, 1994. We are also
aware of our responsibilities under the Securities Act of 1933.
Yours very truly,
PRICE WATERHOUSE LLP
Dallas, Texas
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3 of
our report dated July 19, 1994 appearing on page F-2 of Triton Energy
Corporation's Annual Report on Form 10-K for the year ended May 31, 1994.
We also consent to the reference to us under the heading "Experts" in
such Prospectus.
PRICE WATERHOUSE LLP
Dallas, Texas
October 17, 1994
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3
of our report dated August 14, 1992 appearing on page F-3 of Triton
Energy Corporation's Annual Report on Form 10-K for the year ended
May 31, 1994. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
KPMG Peat Marwick LLP
Dallas, Texas
October 17, 1994
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated August 14, 1992 appearing on page F-53 of Triton Energy Corporation's
Annual Report on Form 10-K for the year ended May 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
KPMG Peat Marwick
Brisbane, Australia
October 17, 1994
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
October 17, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
Gentlemen:
We hereby consent to (i) the incorporation by reference from Triton
Energy Corporation's (the Company) Annual Report on Form 10-K for the fiscal
year ended May 31, 1994, and inclusion in the Company's Registration Statement
on Form S-3 (the Form S-3) relating to an offering of the Company's Securities
of certain data from our report dated July 11, 1994, entitled "Appraisal Report
on Certain Properties in Columbia owned by Triton Colombia Incorporated as of
May 31, 1994-SEC Case" and (ii) the specific references to our firm in
"Experts" in Form 10-K and Form S-3.
Very truly yours,
DeGOLYER and MacNAUGHTON
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
October 17, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
RE: Consent of Independent Petroleum Engineers
Dear Gentlemen:
We hereby consent to the incorporation by reference from Triton Energy
Corporation's (the "Company") Annual Report on Form 10-K for the fiscal year
ended May 31, 1994, and inclusion in the Company's Registration Statement on
Form S-3 (the "Form S-3") relating to an offering of the Company's securities,
of the estimates of the net proved reserves and future net cash inflows of the
Company prepared by our firm and our related calculations. We also hereby
consent to the specific references to our firm as "experts".
Sincerely,
McDANIEL & ASSOCIATES CONSULTANTS LTD.
/s/ B.H. Emslie
B.H. Emslie, Vice President
Calgary, Alberta, Canada
Dated: October 17, 1994
Exhibit 1.1
TRITON ENERGY CORPORATION
Debt Securities
Warrants to Purchase Debt Securities
Underwriting Agreement
___________, 19__
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Dear Sirs:
1. Introductory. Triton Energy Corporation, a Texas corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities or warrants representing rights to purchase debt securities at the
Company (the "Warrants") registered under the registration statement referred
to in Section 2(a) (the "Registered Securities"). The Registered Securities
will be issued under an indenture dated as of ___________, 199_ (the
"Indenture") between the Company and ____________, as Trustee, in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time of
sale. The Warrants will be evidenced by warrant certificates issued by one or
more warrant agents (collectively, the "Warrant Agent") under one or more
Warrant Agreements (collectively, the "Warrant Agreement") between the Company
and the Warrant Agent. The particular series of the Registered Securities to
be sold pursuant to this Agreement are described in Annex I hereto.
The Registered Securities offered hereby are hereinafter referred to
as the "Securities". The firm or firms which agree to purchase the Securities
are hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in
Annex I are hereinafter referred to as the "Representatives"; provided,
however, that if Annex I does not specify any representative of the
Underwriters, the term "Representatives", as used in this Agreement (other than
in Sections 2(b) and 5(c) and the first sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- __________), including a
combined prospectus, relating to certain of the debt securities, preferred
stock, common stock and warrants of the Company (including the Securities)
has been filed with the Securities and Exchange Commission ("Commission")
and has become effective. Such registration statement, as amended at the
date hereof, is hereinafter referred to as the "Registration Statement",
and the combined prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
<PAGE>
Securities and the terms of offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Securities Act of 1933, as amended (the "Act"), including all
materials incorporated by reference therein, is hereinafter referred to as
the "Prospectus".
(b) On the effective date of the registration statement relating to
the registered securities, such Registration Statement conformed in all
material respects to the requirements of the Act, the Trust Indenture Act
of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; and on the date hereof, the Registration Statement and the
Prospectus conform in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does not
apply to (i) statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein and (ii)
that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act.
3. Purchase and Offering of Securities. Annex I specifies the firm
or firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Securities not already specified
in the applicable Indenture and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). Annex I also specifies the time and date of delivery and payment (such
time and date, or such other time not later than seven full business days
thereafter as the Representatives and the Company hereby agree as the time for
payment and delivery, being herein referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of
the Securities. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters
may request.
If Annex I provides for sales of Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers
to purchase Securities pursuant to delayed delivery contracts substantially in
the form of Annex II attached hereto (the "Delayed Delivery Contracts") with
such changes therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date the Company will
pay, as compensation, to the Representatives for the accounts of the
Underwriters, the fee set forth in Annex I in respect of the principal amount
of Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
<PAGE>
executes and delivers Delayed Delivery Contracts, the Contract Securities will
be deducted from the Securities to be purchased by the several Underwriters and
the aggregate principal amount of Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the principal amount of
Securities set forth opposite each Underwriter's name in Annex I, except to the
extent that the Representatives determine that such reduction shall be
otherwise than pro rata and so advise the Company. The Company will advise the
Representatives not later than the business day prior to the Closing Date of
the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to the Representatives and, counsel
for the Underwriters, one signed copy of the registration statement relating
to the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and
if consented to by the Representatives, subparagraph (5)).
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date hereof, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date hereof and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date hereof, which will satisfy the
provisions of Section 11(a) of the Act.
<PAGE>
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of three years after the date hereof, the
Company will furnish to the Representatives as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the Representatives (i) as
soon as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including, subject to the provisions of Section 8
hereof, reasonable fees and disbursements of counsel) incurred by them in
connection with qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives may designate and the printing
of memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities, and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of the Company's independent public accountants, confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial information contained in
or incorporated by reference in the Prospectus.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
<PAGE>
(c) Subsequent to the execution of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, materially impairs the investment
quality of the Securities or the Registered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared by Federal or
New York authorities; or (v) any outbreak or substantial escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Jackson & Walker, L.L.P., counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification;
(ii) The applicable Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under the
Trust Indenture Act; and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company;
the Securities other than any Contract Securities have been duly
executed and issued by the Company; the Securities other than any
Contract Securities constitute, and any Contract Securities, when
duly executed and issued by the Company and delivered in the manner
provided in the applicable Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the
<PAGE>
applicable Indenture, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; if
the Securities include Warrants, upon due execution, countersignature
and delivery, the Warrants in definitive form will constitute valid
and legally binding obligations of the Company and the Warrants may
be exercised to purchase debt securities of the Company in accordance
with their terms and the terms of the Warrant Agreement; if any
Securities are to be issued as convertible securities, the shares of
Common Stock into which such Securities are convertible are duly and
validly authorized, have been duly reserved for issuance upon
conversion of such Securities, and when issued upon the conversion of
such Securities will be duly and validly issued, fully paid and
nonassessable and not in violation of or subject to any preemptive
rights;
(iv) To the best of the knowledge of such counsel, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Securities by the Company, except such as
have been obtained and made under the Act and the Trust Indenture Act
and such as may be required under applicable state securities laws;
(v) The execution, delivery and performance of the applicable
Indenture, this Agreement, the Warrant Agreement and any Delayed
Delivery Contracts and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties or the charter or by-laws of the Company or any
such subsidiary, or to the best of the knowledge of such counsel, any
agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary
is subject, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the
provisions of this Agreement;
(vi) The documents incorporated by reference in the
Registration Statement and the Prospectus, at the time such documents
were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder; the descriptions
in the Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel does not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
<PAGE>
counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by
reference in the Registration Statement or the Prospectus; and
(vii) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America and the laws of the state of Texas and that such counsel is not
admitted in the State of New York and (ii) rely (to the extent such counsel
deems proper and specifies in their opinion), as to matters involving the
application of the laws of the State of New York upon the opinion of Simpson
Thacher & Bartlett furnished pursuant to Section 5(e) of this Agreement.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of Simpson Thacher & Bartlett, special counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The applicable Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under the
Trust Indenture Act; and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company;
the Securities other than any Contract Securities have been duly
executed and issued by the Company; the Securities other than any
Contract Securities constitute, and any Contract Securities, when
duly executed and issued by the Company and delivered in the manner
provided in the applicable Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the
applicable Indenture, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; if
the Securities include Warrants, upon due execution, countersignature
and delivery, the Warrants in definitive form will constitute valid
and legally binding obligations of the Company and the Warrants may
be exercised to purchase debt securities of the Company in accordance
with their terms and the terms of the Warrant Agreement; if any
Securities are to be issued as convertible securities, the shares of
Common Stock into which such Securities are convertible are duly and
<PAGE>
validly authorized, have been duly reserved for issuance upon
conversion of such Securities, and when issued upon the conversion of
such Securities will be duly and validly issued, fully paid and
nonassessable;
(iv) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Act, and the registration statement relating to the
Registered Securities, as of its effective date, and the Prospectus,
as of its date, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the applicable
Rules and Regulations, except that in each case it is understood that
such counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by
reference in the Registration Statement, the Prospectus or any
amendment or supplement thereto;
(v) Such counsel has no reason to believe that such
registration statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, as of the
date of this Agreement, or any such amendment or supplement, as of
its date, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that in each case such counsel need
express no opinion or belief with respect to the financial statements
or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement
thereto;
(vi) The statements made in the Prospectus under the caption
"Description of Debt Securities", insofar as they purport to
constitute summaries of the terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects; and
(vii) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America and the laws of the State of New York and that such counsel is not
admitted in the State of Texas and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion), as to matters involving the application
of the laws of the State of Texas upon the opinion of Jackson & Walker, L.L.P.,
furnished pursuant to Section 5(d) of this Agreement.
<PAGE>
(f) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to
the incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company and its subsidiaries
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
<PAGE>
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless all indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
<PAGE>
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under this Agreement and
the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments under this
Agreement, to purchase the Securities that such defaulting Underwriters agreed
but failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Securities with respect to which such default
or defaults occur exceeds 10% of the total principal amount of the Securities
and arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of
any nondefaulting Underwriter or the Company, except as provided in Section 8.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Securities set forth
opposite their names in Annex I as a result of Delayed Delivery Contracts
entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters hereunder is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect.
<PAGE>
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: General Counsel.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Annex I and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
Please confirm your agreement with the foregoing by signing a copy of this
Agreement in the space set forth below.
Very truly yours,
[NAME OF REPRESENTATIVE OR UNDERWRITER]
[Insert name(s) of other Representatives or
Underwriters]
[On behalf of--themselves--itself--and as
Representative[s] of the Several][As]
Underwriter[s]
By [NAME OF REPRESENTATIVE OR UNDERWRITER]
By________________________________
[Insert Title]
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
TRITON ENERGY CORPORATION
By_________________________________
[Insert Title]
<PAGE>
ANNEX I
Description of Securities
Title: [___%] [Floating Rate] [Notes] [Debentures] [Bonds] Due
____________.
Principal Amount: $_____________.
Interest: [___% per annum, from _________, payable semiannually on
_________ and _________, commencing _________, to holders of record on the
preceding ____________ or ___________, as the case may be.] [Zero coupon.]
Maturity: _______________.
Optional Redemption: [None.]
Sinking Fund: [None.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
____________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
Purchase Price: ___% of principal amount, plus accrued interest [, if
any,] from ______________.
Expected Reoffering Price: ___% of principal amount, subject to change by
the undersigned.
Closing: _____________, __:__ A.M., New York City time, on
______________, at _________________________, in New York Clearing
House (next day) funds.
[Name[s] and Address[es] of Representative[s]:]
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The Securities will be made available for checking and packaging at the
office of ______________ at least 24 hours prior to the Closing Date.
<PAGE>
SCHEDULE A
Underwriter Principal Amount
___________
Total $
===========
<PAGE>
ANNEX II
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than
9:00 A.M., New York time, on ............ ........., 19....)<F1>
Delayed Delivery Contract
[Insert date of initial public offering]
Triton Energy Corporation
c/o [NAME OF PURCHASER]
[ADDRESS]
Attention: ____________
Gentlemen:
The undersigned hereby agrees to purchase from Triton Energy
Corporation, a Texas corporation (the "Company"), and the Company agrees to
sell to the undersigned, $_____________ principal amount of the Company's
_________________ (the "Securities"), offered by the Company's Prospectus dated
_________ __, 1994 and a Prospectus Supplement dated __________, relating
thereto, receipt of copies of which is hereby acknowledged, at __% of the
principal amount thereof plus accrued interest, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract (the
"Contract").
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal
amount[s] set forth below:
Principal Amount
Number
Delivery Date of Shares
..................... ...................
..................... ...................
Each such delivery date is hereinafter referred to as a Delivery Date.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of _______________ at __:__ __.M. on such Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to such Delivery Date.
<PAGE>
It is expressly agreed that the provisions for delayed delivery
and payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on each Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at such Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total principal amount of the Securities less
the principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
________________________________________
(Name of Purchaser)
By______________________________________
_______________________________________
(Title of Signatory)
_______________________________________
_______________________________________
(Address of Purchaser)
Accepted, as of the above date.
TRITON ENERGY CORPORATION
By_______________________________
[Insert Title]
____________________
[FN]
<F1> Insert date which is third full business day prior to Closing Date
specified in Annex I.
Exhibit 1.2
TRITON ENERGY CORPORATION
Equity Securities
Warrants to Purchase Equity Securities
Underwriting Agreement
___________, 19__
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Dear Sirs:
1. Introductory. Triton Energy Corporation, a Texas corporation
(the "Company"), proposes to issue and sell from time to time certain of its
shares of preferred stock (the "Preferred Stock") or common Stock (the "Common
Stock") or warrants representing rights to purchase preferred stock or common
stock of the Company (the "Warrants") registered under the registration
statement referred to in Section 2(a) (the Preferred Stock, Common Stock and
Warrants collectively, the "Registered Securities"). The Preferred Stock may
be issued in one or more series, which series may vary as to voting rights,
dividends, optional and mandatory redemption provisions, liquidation
preference, conversion provisions and other terms, with all such terms for any
particular series being determined at the time of issue. The Warrants will be
evidenced by warrant certificates issued by one or more warrant agents
(collectively, the "Warrant Agent") under one or more warrant agreements
(collectively, the "Warrant Agreement") between the Company and the Warrant
Agent. The terms of the Registered Securities to be sold pursuant to this
Agreement (the "Firm Securities") are described in Annex I hereto. If
specified in Annex I, the Company proposes to grant to the Underwriters named
therein an option (the "Option") to purchase up to that amount of Registered
Securities as is specified therein (the "Option Securities").
The Firm Securities (together with the Option Securities) offered
hereby are hereinafter referred to as the "Securities". The firm or firms
which agree to purchase the Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in Annex I are hereinafter referred to as
the "Representatives"; provided, however, that if Annex I does not specify any
representative of the Underwriters, the term "Representatives", as used in this
Agreement (other than in Sections 2(b) and 5(c) and the first sentence of
Section 3(a)), shall mean the Underwriters. The Firm Securities are to be sold
to each Underwriter, acting severally and not jointly, in the respective
numbers as are set forth in Schedule A to Annex I opposite the name of such
Underwriter.
<PAGE>
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- __________), including a
combined prospectus, relating to certain of the debt securities, preferred
stock, common stock and warrants of the Company (including the Firm
Securities) has been filed with the Securities and Exchange Commission
("Commission") and has become effective. Such registration statement, as
amended at the date hereof, is hereinafter referred to as the
"Registration Statement", and the combined prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering thereof, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the
"Act"), including all materials incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and on the date hereof, the
Registration Statement and the Prospectus conform in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. (a) Annex I specifies the
firm or firms which will be Underwriters, the names of any Representatives, the
Firm Securities to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and whether any of the Firm Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). Annex I also specifies the time and date of delivery and payment (such
time and date, or such other time not later than seven full business days
thereafter as the Representatives and the Company hereby agree as the time for
payment and delivery, being herein referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of
the Firm Securities. It is understood that the Underwriters propose to offer
the Firm Securities for sale as set forth in the Prospectus. The Firm
Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in such
names as the Underwriters may request.
(b) If specified in Annex I, the Company hereby grants the Option to the
Underwriters to purchase up to that amount of Option Securities as is specified
in Annex I, at the same purchase price as the Underwriters shall pay for the
Firm Securities, for the sole purpose of covering over-allotments in the sale
of the Firm Securities by the Underwriters. The Option may be exercised at any
time, in whole or in part, on or before the thirtieth day after the date of the
Prospectus, by written notice by the Representatives to the Company. Such
<PAGE>
notice shall set forth the aggregate amount of Option Securities as to which
the Option is being exercised and the date and time, as reasonably determined
by the Representatives, when the Option Securities are to be delivered (such
date and time being herein sometimes referred to as the "Additional Closing
Date"); provided, however, that the Additional Closing Date shall not be
earlier than the Closing Date or earlier than the second full business day
after the date on which the Option shall have been exercised nor later than the
eighth full business day after the date on which the Option shall have been
exercised. The amount of Option Securities to be purchased by each Underwriter
shall be the same percentage of the total amount of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Firm Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares/units.
(c) If Annex I provides for sales of Firm Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers
to purchase Firm Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto (the "Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in Annex I in respect of the number of
shares of Firm Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If
the Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Firm Securities to be purchased by the
several Underwriters and the number of shares of Firm Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
number of shares of Firm Securities set forth opposite each Underwriter's name
in Annex I, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business day prior
to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to the Representatives and, counsel
for the Underwriters, one signed copy of the Registration Statement relating
to the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and
if consented to by the Representatives, subparagraph (5)).
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its reasonable best efforts to prevent the
<PAGE>
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date hereof, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date hereof and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date hereof, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of three years after the date hereof, the
Company will furnish to the Representatives as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the Representatives (i) as
soon as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including, subject to the provisions of Section 8
hereof, reasonable fees and disbursements of counsel) incurred by them in
connection with qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives may designate and the printing
of memoranda relating thereto and for expenses incurred in distributing
<PAGE>
the Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) During the period, if any, specified on Annex I, the Company
will not offer for sale, sell, or otherwise dispose of (or enter into any
transaction which is designed to, or could be expected to, result in the
disposition by any person of), directly or indirectly, any shares of
preferred stock or common stock (other than the Securities and shares
issued pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or pursuant
to currently outstanding options, warrants or rights), or sell or grant
options, rights or warrants with respect to any shares of common stock or
preferred stock (other than the grant of options pursuant to compensation
plans existing on the date hereof), without the prior written consent of
the Representatives.
(j) If and to the extent specified in Annex I, the Company will use
its best efforts to cause the Securities to be duly authorized for listing
on the New York Stock Exchange or any other exchange and to be registered
under the Exchange Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of the Company's independent public accountants, confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial information contained in
or incorporated by reference in the Prospectus.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, materially impairs the investment
quality of the Securities or the Registered Securities; (ii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market; or (iii) any outbreak or substantial escalation of
major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters,
<PAGE>
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Jackson & Walker, L.L.P., counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus. All of the outstanding shares of capital stock of
the Company are duly and validly authorized and issued, are fully
paid and nonassessable and were not issued in violation of or subject
to any preemptive rights. The Securities have been duly authorized
by the Company and, upon issuance and delivery of such Securities and
payment therefor in accordance with the terms of this Agreement and
any Delayed Delivery Contracts, such Securities will be validly
issued, fully paid and non-assessable and will not have been issued
in violation of or subject to any preemptive rights; if the
Securities include Warrants, such Warrants have been duly authorized
by the Company and, upon due execution, countersignature and
delivery, the Warrants in definitive form will constitute valid and
legally binding obligations of the Company and the Warrants may be
exercised to purchase common stock or preferred stock of the Company
in accordance with their terms and the terms of the Warrant
Agreement; if any Securities are to be issued as convertible
securities, the shares of Common Stock into which such Securities are
convertible are duly and validly authorized, have been duly reserved
for issuance upon conversion of such Securities, and when issued upon
the conversion of such Securities will be duly and validly issued,
fully paid and nonassessable and not in violation of or subject to
any preemptive rights;
(iii) To the best of the knowledge of such counsel, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Securities by the Company, except such as may
be required under applicable state securities laws;
(iv) The execution, delivery and performance of this Agreement,
the Warrant Agreement and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties or the charter
or by-laws of the Company or any such subsidiary, or to the best of
<PAGE>
the knowledge of such counsel, any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, and the Company has
full power and authority to authorize, issue and sell the Securities
as contemplated by the provisions of this Agreement;
(v) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time such documents were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable rules
and regulations of the Commission thereunder; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel does not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by
reference in the Registration Statement or the Prospectus; and
(vi) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America and the laws of the state of Texas and that such counsel is not
admitted in the State of New York and (ii) rely (to the extent such counsel
deems proper and specifies in their opinion), as to matters involving the
application of the laws of the State of New York upon the opinion of Simpson
Thacher & Bartlett furnished pursuant to Section 5(e) of this Agreement.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of Simpson Thacher & Bartlett, special counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Securities have been duly authorized by the Company
and, upon issuance and delivery of such Securities and payment
therefor in accordance with the terms of this Agreement and any
Delayed Delivery Contracts, such Securities will be validly issued,
fully paid and non-assessable; if the Securities include Warrants,
such Warrants have been duly authorized by the Company and, upon due
execution, countersignature and delivery, the Warrants in definitive
form will constitute valid and legally binding obligations of the
Company and the Warrants may be exercised to purchase common stock or
preferred stock of the Company in accordance with their terms and the
terms of the Warrant Agreement; if any Securities are to be issued as
<PAGE>
convertible securities, the shares of Common Stock into which such
Securities are convertible are duly and validly authorized, have been
duly reserved for issuance upon conversion of such Securities, and
when issued upon the conversion of such Securities will be duly and
validly issued, fully paid and nonassessable;
(iii) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Act, and the registration statement relating to the
Registered Securities, as of its effective date, and the Prospectus,
as of its date, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act and the applicable Rules and Regulations,
except that in each case it is understood that such counsel need
express no opinion with respect to the financial statements or other
financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement
thereto;
(iv) Such counsel has no reason to believe that such
registration statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, as of the
date of this Agreement, or any such amendment or supplement, as of
its date, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that in each case such counsel need
express no opinion or belief with respect to the financial statements
or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement
thereto;
(v) The statements made in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Company's common stock and preferred
stock (including the Securities), constitute accurate summaries of
the terms of such common stock and preferred stock in all material
respects;
(vi) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company;
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America and the laws of the State of New York and that such counsel is not
admitted in the State of Texas and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion), as to matters involving the application
of the laws of the State of Texas upon the opinion of Jackson & Walker, L.L.P.,
furnished pursuant to Section 5(d) of this Agreement.
<PAGE>
(f) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to
the incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company and its subsidiaries
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
(h) At the Closing Date, (i) if Annex I provides that any shares of
Common Stock are to be sold, such shares shall have been approved for listing
on the New York Stock Exchange upon notice of issuance and (ii) if Annex I
provides that any other Securities to be sold are to be listed on any
securities exchange or quoted on the National Association of Securities Dealers
Automated Quotation System, such Securities shall have been approved for
listing or quotation, as the case may be, upon notice of issuance.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
<PAGE>
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless all indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
<PAGE>
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under this Agreement and
the aggregate number of shares of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the aggregate number of shares of the Securities, the Representatives may
make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
under this Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate number of shares of the Securities with respect to
which such default or defaults occur exceeds 10% of the aggregate number of
shares of the Securities and arrangements satisfactory to the Representatives
and the Company for the purchase of such Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the number of shares of the Firm
Securities set forth opposite their names in Annex I as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
<PAGE>
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters hereunder is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect.
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: General Counsel.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Annex I and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
Please confirm your agreement with the foregoing by signing a copy of this
Agreement in the space set forth below.
Very truly yours,
[NAME OF REPRESENTATIVE OR UNDERWRITER]
[Insert name(s) of other Representatives or
Underwriters]
[On behalf of--themselves--itself--and as
Representative[s] of the Several][As]
Underwriter[s]
By [NAME OF REPRESENTATIVE OR UNDERWRITER]
By________________________________
[Insert Title]
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
TRITON ENERGY CORPORATION
By_________________________________
[Insert Title]
<PAGE>
ANNEX I
Description of Securities
[In addition, the Company grants to the Underwriters an option,
exercisable by written notice given by the Representatives to the Company any
time on or before the 30th day after the date of the Prospectus to purchase up
to an additional ____ shares of [Preferred Stock] [Common Stock] [Warrants].]
Number of shares of [Preferred Stock] [Common Stock] [Warrants] to be
issued: _______
Initial public offering price per [share of Preferred Stock] [Common
Stock] [Warrants]: $_______, [plus accrued and unpaid dividends, if any,
from _________, 19__.]
Purchase price per [share of Preferred Stock] [Common Stock] [Warrant]:
$_______
(amount equal to the initial public offering price set forth above,
less $_______ per share of [Preferred Stock] [Common Stock]
[Warrant])
["Lock-up" period: _________________________]
Dividends:
Regular Record Dates:
Additional Representations, if any:
Liquidation Preference:
[Redemption Provisions]:
[Sinking Fund Provisions:]
[Form of Payment, if other than New York Clearinghouse (next day) funds:]
[Additional Jurisdictions pursuant to Section 4(f):]
[Other Terms and Conditions:]
Exchangeability or Convertibility Requirements, if any:
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
_______________. Underwriters' fee is ____% of the purchase price of the
Contract Securities.]
Closing: _____________, __:__ A.M., New York City time, on
______________, at _________________________, in New York Clearing
House (next day) funds.
[Name[s] and Address[es] of Representative[s]:]
<PAGE>
The respective number of shares of the Firm Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The Firm Securities will be made available for checking and packaging at
the office of ______________ at least 24 hours prior to the Closing Date.
<PAGE>
SCHEDULE A
Underwriter Number of Shares
____________
Total ============
<PAGE>
ANNEX II
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than
9:00 A.M., New York time, on ............ ........., 19....)<F1>
Delayed Delivery Contract
[Insert date of initial public offering]
Triton Energy Corporation
c/o [NAME OF PURCHASER]
[ADDRESS]
Attention: ____________
Gentlemen:
The undersigned hereby agrees to purchase from Triton Energy
Corporation, a Texas corporation (the "Company"), and the Company agrees to
sell to the undersigned, _____________ shares of the Company's
_________________ (the "Securities"), offered by the Company's Prospectus dated
_____________, 199__ and a Prospectus Supplement dated __________, relating
thereto, receipt of copies of which is hereby acknowledged, at $______ per
share, plus accrued dividends, if any, and on the further terms and conditions
set forth in this Delayed Delivery Contract (the "Contract").
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the amount[s] set
forth below:
Number
Delivery Date of Shares
..................... ...................
..................... ...................
Each such delivery date is hereinafter referred to as a Delivery Date.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of _______________ at __:__ __.M. on such Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
<PAGE>
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on each Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at such Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total number of shares of the Securities less
the number of shares thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
__________________________________________
(Name of Purchaser)
By_______________________________________
_______________________________________
(Title of Signatory)
_______________________________________
_______________________________________
(Address of Purchaser)
Accepted, as of the above date.
TRITON ENERGY CORPORATION
By_______________________________
[Insert Title]
____________________
[FN]
<F1> Insert date which is third full business day prior to Closing Date
specified in Annex I.
Exhibit 4.4
==============================================================================
TRITON ENERGY CORPORATION
AND
as Trustee
Subordinated Indenture
Dated as of _________________
==============================================================================
<PAGE>
CROSS REFERENCE SHEET<F1>
_______________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated
as of __________________ between TRITON ENERGY CORPORATION 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
____________________
[FN]
<F1> This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . 2
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . . 3
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . 4
original issue date . . . . . . . . . . . . . . . . . . . . . . . . 4
original issue discount . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal amount . . . . . . . . . . . . . . . . . . . . . . . . . 6
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . 7
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 7
<PAGE>
Page
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . 8
SECTION 2.3 Amount Unlimited Issuable in Series . . . . . . . . . . . 8
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . 11
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . 13
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . 14
SECTION 2.7 Denomination and Date of Securities; Payments of Interest 14
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 17
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . . . . 18
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . 18
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . 19
SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . . . . 19
SECTION 3.3 No Interest Extension . . . . . . . . . . . . . . . . . . 19
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office . . . 19
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . . . . . 19
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 . . . . . . . . . . . . . 20
SECTION 4.2 Preservation and Disclosure of Securityholders Lists . . 20
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . 22
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . 22
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.2 Payment of Securities on Default; Suit Therefor . . . . . 26
SECTION 5.3 Application of Moneys Collected by Trustee . . . . . . . 27
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . . . 28
SECTION 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . 29
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . 29
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority
of Securityholders . . . . . . . . . . . . . . . . . . 29
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . 30
SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . 30
<PAGE>
Page
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . . . . 31
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . 32
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof . . . . . 33
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc. . . . . . . . . . . . . . . . . . . 33
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . 33
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. 34
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . . . 34
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series . . . . . . . . . . . . . 34
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee 35
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . . . 36
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . . 37
SECTION 6.13 Preferential Collection of Claims Against the Issuer . . 38
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . 38
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . . . 39
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . . . 39
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . 39
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . . . 40
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . . . . 40
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.2 Supplemental Indentures with Consent of Securityholders . 42
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . 44
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . 44
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms . . . . . 44
SECTION 9.2 Successor Corporation to be Substituted . . . . . . . . . 45
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . . . . . 45
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . 46
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . 48
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . . . . . 48
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . . . . 49
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability . 49
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities . . . . . . . . . . . . . . . 49
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . . 49
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . . . 50
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . . . . 51
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . . 51
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . . . . . . 51
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . 51
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . . . . 51
SECTION 12.3 Payment of Securities Called for Redemption . . . . . . . 53
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption . . . . . . . . . . . . . . . 53
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . . . . . 53
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness . . . . . 55
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness . . . . 58
SECTION 13.3 Payment Permitted If No Default . . . . . . . . . . . . . 59
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness . . 59
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition . . . . 59
SECTION 13.6 Trustee to Effectuate Subordination . . . . . . . . . . . 60
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SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness . . . 60
SECTION 13.8 Article Applicable to Paying Agents . . . . . . . . . . . 60
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of
the Issuer or Holders of Senior Indebtedness . . . . . 60
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness 61
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THIS SUBORDINATED INDENTURE, dated as of _________________ between
TRITON ENERGY CORPORATION, a Texas corporation (the "Issuer"), and
_______________________________, a __________ corporation as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to
time of its unsecured 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 otherwise
expressly provided herein or in any indenture supplemental hereto or unless the
context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and "date
of execution and delivery of this Indenture" and other expressions of similar
<PAGE>
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.
"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.
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"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) 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 and (iii) lease obligations which such
Person capitalizes 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;
(b) any other indebtedness of such Person, including any
indebtedness representing the balance deferred and unpaid of the
purchase price of any property or interest therein, 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;
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(c) obligations of such Person under interest rate, commodity
or currency swaps, caps, collars, options and similar arrangements;
(d) obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar
credit transaction; and
(e) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clauses (a) through (d) 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 Corporation, a Texas corporation, 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.
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"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,
<PAGE>
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary, and (b) any Subsidiary which was an Unrestricted
Subsidiary but which, subsequent to the date hereof, is designated by the
Issuer (by Board Resolution) to be a Restricted Subsidiary; provided, however,
that the Issuer may not designate any such Subsidiary to be a Restricted
Subsidiary if the Issuer would thereby breach any covenant or agreement herein
contained (on the assumptions that any outstanding Indebtedness of such
Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"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 or pursuant to which the
same is outstanding, 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" means any corporation of which the Issuer, or the Issuer
and one or more Subsidiaries, or any one or more Subsidiaries, directly or
<PAGE>
indirectly own voting securities entitling any one or more of the Issuer 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 acquired or
organized after the date hereof, provided, however, that such Subsidiary shall
not be a successor, directly or indirectly, to any Restricted Subsidiary, and
(b) any Subsidiary substantially all the assets of which consist of stock or
other securities of a Subsidiary or Subsidiaries of the character described in
clause (a) of this paragraph, unless and until such Subsidiary shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"vice president," when used with respect to the Issuer 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
<PAGE>
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. There shall be established in or
pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
<PAGE>
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, on which any such interest shall be payable and on which a
record shall be taken for the determination of Holders to whom any such
interest is payable or the method by which such rate or rates or date or
dates shall be determined or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series
shall be payable (if other than as provided in Section 3.2) and the office
or agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices (or the method by
which such price or prices shall be determined or both) at which, the form
or method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series may be so redeemed,
purchased or repaid, in whole or in part pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor if
other than in cash and any terms and conditions upon which and the manner
in which (if different from the provisions of Article Twelve) Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(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;
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(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 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; and
(19) any other terms of the series.
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series 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.
<PAGE>
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 if the Securities of such series are not to be
delivered to the Issuer, provided that, with respect to Securities of a
series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates, if any, and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures, (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued, any
separate request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a certification by
the Issuer that it is in compliance with all conditions precedent provided
for in this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
<PAGE>
(4) either an Opinion of Counsel, or a letter from legal counsel
addressed to the Trustee permitting it to rely on an Opinion of Counsel,
substantially to the effect that:
(a) the form or forms of the Securities of such series have
been duly authorized and established in conformity with the
provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities of such series 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;
(c) 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
(d) 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 (which shall be reasonable), any
judgment, order or decree of any governmental agency or any court
having jurisdiction over the Issuer or any Subsidiary, 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 all laws and requirements with respect to the
form and execution by the Issuer of the supplemental indenture with respect to
the series of Securities have been complied with, 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
<PAGE>
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 the seal or any such
<PAGE>
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
<PAGE>
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. All Securities surrendered upon any exchange or
registration of transfer provided for in this Indenture shall be promptly
cancelled and returned to the Issuer.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
<PAGE>
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
<PAGE>
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
<PAGE>
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 Company. 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.
<PAGE>
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
<PAGE>
(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
<PAGE>
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.
<PAGE>
(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) 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) Within 60 days after
January 1 of each year commencing with the year 1994, the Trustee shall
transmit by mail to the Holders of Securities, as provided in subsection (c) of
this Section 4.4, a brief report dated as of such January 1 with respect to any
of the following events which may have occurred within the last 12 months (but
if no such event has occurred within such period, no report need be
transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
<PAGE>
(ii) the creation of, or any material change to, a
relationship specified in paragraph (1) through (10) of Section
310(b) of the Trust Indenture Act of 1939;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the
date of such report and for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities of any
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than 1/2 of 1% of the principal amount of all Securities
Outstanding on the date of such report;
(iv) the amount, interest rate, if any, and maturity date of
all other indebtedness owing by the Issuer (or by any other obligor
on the Securities) to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in Section
311(b) of the Trust Indenture Act of 1939;
(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such
report;
(vi) any additional issue of Securities which the Trustee has
not previously reported; and
(vii) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Article Five.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section 4.4, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section 4.4 (or if no such report has yet
been so transmitted, since the date of this Indenture) for the reimbursement of
which it claims or may claim a lien or charge prior to that of the Securities
of such series on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this subsection (b), except
that the Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of all Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Securities, as the names and addresses
of such Holders appear upon the registry books of the Issuer; and
<PAGE>
(ii) to all other Persons to whom such reports are required to
be transmitted pursuant to Section 313(c) of the Trust Indenture Act
of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and 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 the Bankruptcy
Code 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 the Bankruptcy Code or
applicable state insolvency law and the continuance of any such judgment, order
or decree is unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under the Bankruptcy Code or for an
<PAGE>
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 the
Bankruptcy Code or any applicable state law, or shall consent to the filing of
such petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer or of
substantially all of its property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under the Bankruptcy
Code; 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
<PAGE>
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 with respect to the Issuer
specified in Section 5.1(e) or 5.1(f) occurs, 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 Article Five relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
<PAGE>
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 Article Five), unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand;
<PAGE>
(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.
<PAGE>
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
<PAGE>
capital and surplus as set forth in its most recent report of condition so
published. No obligor upon the Securities or any Affiliate of such obligor
shall serve as trustee upon the Securities. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.9, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
A different Trustee may be appointed by the Issuer for any series of
Securities prior to the issuance of such Securities. If the initial Trustee
for any series of Securities is to be a trustee other than
___________________________, 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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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, by any Affiliate of the Issuer or by any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
<PAGE>
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 Article Five of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of
the Indenture or (iii) waive compliance with any term, condition or provision
of any covenant hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and any such Persons, shall be
entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further effect.
<PAGE>
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
<PAGE>
Indenture under the Trust Indenture Act of 1939, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions
as may be expressly permitted by the Trust Indenture Act of 1939, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act of 1939 as in effect at the date as of which this instrument was executed
or any corresponding provision provided for in any similar federal statute
hereafter enacted; or
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than ____________________________ 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
<PAGE>
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
<PAGE>
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 by the Issuer,
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
<PAGE>
have been made, shall be a Person organized under the laws of the United States
of America, any state thereof or the District of Columbia; 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 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.
<PAGE>
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at
any time (i) the Issuer shall have paid or caused to be paid the principal of,
premium, if any, and interest, if any, on all the Securities Outstanding (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (ii) the Issuer 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 (i) 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 (ii) 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 (iii) in the
case of any series of Securities with respect to which the exact amount
described in clause (B) below can be determined at the time of making the
deposit referred to in such clause (B), (A) all the Securities of such series
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or by their terms are to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (B) the Issuer 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
<PAGE>
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 (B) 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 (iii) of this Section 10.1(b), as to (I) rights
of registration of transfer and exchange of Securities of such series, (II)
rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (III) rights of Holders of Securities of such series
to receive payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (IV) the
rights, obligations, duties and immunities of the Trustee hereunder, (V) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (VI) the obligations of the Issuer 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 (1) cash in an
<PAGE>
amount, or (2) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (3) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay (I) the principal of, premium, if any, and interest, if any, on all
Securities of such series on each date that such principal or interest, if
any, is due and payable, and (II) any mandatory sinking fund payments on
the dates on which such payments are due and payable in accordance with
the terms of the Indenture and the Securities of such series;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer 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 (1) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (2), since the date
hereof, there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
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
<PAGE>
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 Corporation, 6688 North Central Expressway, Suite 1400, Dallas,
Texas 75206-9926, Attention: Chairman of the Board. 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: ________________.
<PAGE>
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, on 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.
<PAGE>
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 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 11.10 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 Article Five 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
<PAGE>
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, and 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
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, effective as of ____________________.
TRITON ENERGY CORPORATION
By:
Title:
Attest:
By:
Title:
,
as Trustee
By:
Title:
Attest:
By:
Title:
Exhibit 4.5
==============================================================================
TRITON ENERGY CORPORATION
and
[WARRANT AGENT]
As Warrant Agent
________________
Warrant Agreement -- [Common Shares]
[Preferred Shares]*
Dated as of , 199_
_________________
==============================================================================
* Options Represented By Bracketed Or Blank Sections Herein Shall Be
Determined In Conformity With The Applicable Prospectus Supplement Or
Supplements
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . 1
SECTION 1.1. Issuance of Warrants . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Execution and Delivery of Warrant Certificates . . . . 1
SECTION 1.3. Issuance of Warrant Certificates . . . . . . . . . . . 2
SECTION 1.4. Temporary Warrant Certificate . . . . . . . . . . . . . 2
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS . . . . . . . . . . . . 3
SECTION 2.1. Warrant Price . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2. Duration and Exercise of Warrants . . . . . . . . . . . 3
SECTION 2.3. No Fractional Shares to Be Issued . . . . . . . . . . . 4
SECTION 2.4. Covenant to Reserve Shares for Issuance on Exercise . . 5
SECTION 2.5. Share Record Date . . . . . . . . . . . . . . . . . . . 6
SECTION 2.6. Rights Upon Dissolution or Liquidation . . . . . . . . 6
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
[COMMON] [PREFERRED] SHARES PURCHASABLE . . . . . . . 7
SECTION 3.1. Adjustment of Warrant Price . . . . . . . . . . . . . . 7
SECTION 3.2. Adjustment of [Common] [Preferred] Shares Purchasable
Upon Exercise of Warrants . . . . . . . . . . . . . . 11
SECTION 3.3. Statements on Warrants . . . . . . . . . . . . . . . . 12
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . . 12
SECTION 4.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates . . . . . . . . . . 12
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights . . . 13
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance . . . . . . . . . . . . 13
<PAGE>
Page
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES . . . . . . . . . . . 14
SECTION 5.1. Exchange and Transfer of Warrant Certificates . . . . . 14
SECTION 5.2. Treatment of Holders of Warrant Certificates . . . . . 14
SECTION 5.3. Cancellation of Warrant Certificates . . . . . . . . . 15
ARTICLE VI.
CONCERNING THE WARRANT AGENT . . . . . . . . . . 15
SECTION 6.1. Warrant Agent . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2. Conditions of Warrant Agent's Obligations . . . . . . . 15
(a) Compensation and Indemnification . . . . . . . . . 15
(b) Agent for the Company . . . . . . . . . . . . . . 15
(c) Counsel . . . . . . . . . . . . . . . . . . . . . 16
(d) Documents . . . . . . . . . . . . . . . . . . . . 16
(e) Certain Transactions . . . . . . . . . . . . . . . 16
(f) No Liability for Interest . . . . . . . . . . . . 16
(g) No Liability for Invalidity . . . . . . . . . . . 16
(h) No Responsibility for Representations . . . . . . 16
(i) No Implied Obligations . . . . . . . . . . . . . . 16
SECTION 6.3. Resignation and Appointment of Successor . . . . . . . 17
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES] . . . . . . 18
SECTION 7.1. Redemption . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.2. Accelerated Share Conversion Date . . . . . . . . . . . 18
SECTION 7.3. Conversion of Warrants into Shares . . . . . . . . . . 19
SECTION 7.4. Notice of Proposed Actions . . . . . . . . . . . . . . 20
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . . . 20
SECTION 8.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.2. Notices and Demands to the Company and Warrant Agent . 21
SECTION 8.3. Addresses . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.4. Applicable Law . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.5. Delivery of Prospectus . . . . . . . . . . . . . . . . 21
SECTION 8.6. Obtaining of Governmental Approvals . . . . . . . . . . 21
SECTION 8.7. Persons Having Rights under Warrant Agreement . . . . . 22
SECTION 8.8. Headings . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.9. Counterparts . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.10. Inspection of Agreement . . . . . . . . . . . . . . . . 22
<PAGE>
____________________
[FN]
<F1> Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities.
<PAGE>
TRITON ENERGY CORPORATION
Form of [Common Shares][Preferred Shares]
Warrant Agreement<F1>
THIS WARRANT AGREEMENT dated as of ____________, 199_ between Triton
Energy Corporation, a Texas corporation (the "Company,") and [Warrant Agent],
as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
Securities or Preferred Shares -- [title of Debt Securities or Preferred Shares
being offered] (the "Offered Securities") with] warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [ ] of the Company's Common Shares, par value $1.00 per
share (the "Common Shares"), [ ] of the Company's preferred shares, no par
value (the "Preferred Shares" collectively, with the Common Shares, the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _______________ (the "Detachable Date")][and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase __________
Warrant Securities. [If Offered Securities and Warrants -- Warrant
Certificates shall be initially issued in units with the Offered Securities and
each Warrant Certificate included in such a unit shall evidence __________
Warrants for each ________ shares of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated ____________ and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
<PAGE>
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be executed on behalf of the
Company by [its Chairman of the Board, the President, any Senior Vice
President, or any Vice President and by the Secretary or any Assistant
Secretary] under its corporate seal reproduced thereon. Such signatures may be
manual or facsimile signatures of such authorized officers and may be imprinted
or otherwise reproduced in the Warrant Certificates. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [If Offered Securities and Warrants are not immediately detachable --
or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up to date].
SECTION 1.3. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate total number not exceeding
____________ Warrant Securities (except as provided in Sections 1.4, 3.1 and
4.2) may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to __________ Warrant Securities and
shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such issuance of the Warrant Certificates, the Warrant Agent
shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company, the Warrant Agent shall authenticate and deliver, temporary
<PAGE>
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office
of the Warrant Agent [or _______________], without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period from ________,
through and including ______________, the exercise price of each Warrant will
be ______________. During the period from _______________, through and
including ________________, the exercise price of each Warrant will be
________________. Such purchase price of Warrant Securities is referred to in
this Warrant Agreement as the "Warrant Price". No adjustment shall be made for
any dividends on any Warrant Securities issuable upon exercise of any Warrants.
(b) Warrants may be exercised by the holders thereof at any time, at
the Warrant Price then in effect, when the Warrant Securities are registered
pursuant to an effective registration statement under the Securities Act.
Warrants shall in no event be exercisable for the purchase of Warrant
Securities at any time when such Warrant Securities are not registered pursuant
to an effective registration statement under the Securities Act.
The Company shall be required to register the Warrant Securities, or
holders will have such other rights, only as provided in Section 2.3.
The Company shall promptly give all holders notice of the
effectiveness of a registration statement in respect of Warrant Securities and
of any subsequent lapses in the effectiveness of such registration statement.
SECTION 2.2. Duration and Exercise of Warrants. (a) The registered
holder of any Warrant Certificate may exercise the Warrants evidenced thereby
in whole or in part at any time after ___________ __, ____ upon surrender of
the Warrant Certificate with the form of election to purchase on the reverse
side thereof duly executed, to the Warrant Agent at the principal office of the
Warrant Agent [in the Borough of Manhattan, City and State of New York,]
together with payment of the Warrant Price for each [Common][Preferred] Share
as to which the Warrants are exercised, at or prior to 5:00 P.M. ([New York
time]) on [the earliest of (i) _______ __, ____ (the "Scheduled Share
<PAGE>
Conversion Date"), (ii) the Accelerated Share Conversion Date as defined in
Section 7.1 hereof, or (iii) the business day immediately preceding the
Redemption Date as defined in Section 7.1 hereof] [______________ [or such
later date as the Company may designate, by notice to the Warrant Agent and the
holders of the Warrant Certificates mailed to their addresses as set forth in
the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant
not exercised at or before 5 P.M. [New York City time], on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease].
(b) The Warrant Price for each [Common][Preferred] Share pursuant to
the exercise of a Warrant shall initially be ____, shall be subject to
adjustment as provided in Article VII hereof, and shall be payable in lawful
money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of election
to purchase on the reverse side thereof, duly executed, accompanied by payment
of the Warrant Price for the shares to be purchased and an amount equal to any
applicable transfer tax in cash, or by check, bank draft or postal or express
money order payable to the order of the Company, the Warrant Agent shall
thereupon promptly (i) requisition from any transfer agent of the
[Common][Preferred] Shares of the Company certificates for the number of whole
[Common][Preferred] Shares to be purchased and, when appropriate, for the
number of fractional shares to be sold by the Warrant Agent, and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares or Warrants, and (iii)
promptly after receipt of such certificates cause the same to be delivered to
or upon the order of the registered holder of such Warrant Certificate,
registered in such name or names as may be designated by such holder, and ,
when appropriate, after receipt promptly deliver such cash to or upon the order
of the registered holder of such Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate shall
exercise less than all the Warrants evidenced thereby, a new Warrant
Certificate evidencing Warrants equivalent to the Warrants remaining
unexercised shall be issued by the Warrant Agent to the registered holder of
such Warrant Certificate or to his duly authorized assigns, subject to the
provisions of Section 2.4 hereof.
(e) The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all monies
received for the purchase of [Common][Preferred] Shares through the exercise of
Warrants.
SECTION 2.3. No Fractional Shares to Be Issued. (a)
Notwithstanding anything to the contrary contained in this Agreement, if the
number of [Common][Preferred] Shares purchasable on the exercise of each
Warrant is not a whole number, the Company shall not be required to issue any
fraction of a [Common][Preferred] Share or to distribute stock certificates
that evidence fractional [Common][Preferred] Shares or to issue a Warrant
Certificate representing a fractional Warrant upon exercise of any Warrants.
If Warrant Certificates evidencing more than one Warrant shall be surrendered
for exercise at one time by the same holder, the number of full shares which
shall be issuable upon exercise thereof shall be computed on the basis of the
aggregate number of Warrants so surrendered. [If any fraction of a
[Common][Preferred] Share would, except for the provisions of this Section 2.3,
<PAGE>
be issuable on the exercise of any Warrant or Warrants, the Company shall
purchase such fraction for an amount in cash equal to such fraction of the then
current market price of a [Common][Preferred] Share. The Warrant holders, by
their acceptance of the Warrant Certificates, expressly waive their right to
receive any fraction of a [Common][Preferred] Share or a stock certificate
representing a fraction of a [Common] [Preferred] Share.]
(b) If the number of shares purchasable upon the exercise of each
Warrant is adjusted pursuant to Section 3.1(l), the Company shall nonetheless
not be required to issue fractions of shares upon exercise of the Warrants or
to distribute share certificates which evidence fractional shares, nor shall
the Company be required to make any cash adjustment in respect of a fractional
interest in a share, but the fractional interest to which any person is
entitled shall be sold in the manner set forth in subsection (c) of this
Section 2.3 by the Warrant Agent, acting as agent for the person entitled to
such fractional interest, except as otherwise provided in such subsection.
(c) The Warrant Agent shall remit to such person the proceeds of the
sale of any such fractional interest sold by it as such agent. Fractional
interests shall be non-transferable except by or to the Warrant Agent acting as
herein authorized. The Warrant Agent may sell fractional interests on the
basis of market prices of the Warrants or [Common][Preferred] Shares as
determined by the Warrant Agent in its sole discretion. In lieu of making an
actual sale of a fractional interest, the Company may authorize the Warrant
Agent to value fractional interests without actual sale on the basis of the
current market price of the Warrants or [Common][Preferred] Shares as
determined by the Warrant Agent in its sole discretion.
SECTION 2.4. Covenant to Reserve Shares for Issuance on Exercise.
The Company covenants that it will at all times reserve and keep available out
of its authorized but unissued Warrant Securities or its authorized and issued
Warrant securities held in its Treasury, solely for the purpose of issue upon
exercise of Warrants, the full number of Warrant Securities, if any, then
issuable if all outstanding Warrants then exercisable were to be exercised.
The Company covenants that, subject to payment of the Warrant Price, all
[Common][Preferred] Shares which shall be so issuable shall be duly and validly
issued and fully paid and nonassessable.
[The Company hereby authorizes and directs its current and future
transfer agents for the [Common][Preferred] Shares and for any shares of the
Company's capital stock issuable upon the exercise of any of the Warrants at
all times to reserve such number of authorized shares as shall be requisite for
such purpose. The Company will supply such transfer agents with duly executed
stock certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in this Article II.]
The Company covenants that if any [Common][Preferred] Shares required
to be reserved for purposes of exercise of Warrants require, under any federal
or state law or rule or regulation of any national securities exchange,
registration with or approval of any governmental authority, or listing on any
national securities exchange before such shares may be issued upon exercise,
the Company will in good faith and as expeditiously as possible endeavor to
cause such shares to be duly registered, approved or listed on the relevant
national securities exchange, as the case may be; provided, however, that in no
event shall such [Common][Preferred] Shares be issued, and the Company is
hereby authorized to suspend the exercise of all Warrants, for the period
<PAGE>
during which such registration, approval or listing is required but not in
effect.
The Company further covenants and agrees that it will pay when due
and payable any and all Federal and state transfer taxes and charges which may
be payable in respect of the issuance or delivery of the Warrant Certificates
or of any [Common][Preferred] Shares upon the exercise or conversion of
Warrants. The Company shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer involved in the transfer or
delivery of Warrant Certificates or the issuance or conversion or delivery of
Certificates for [Common][Preferred] Shares in a name other than that of the
registered holder of the Warrant Certificate evidencing Warrants surrendered
for exercise or to issue or deliver any certificates for [Common][Preferred]
Shares upon the exercise or conversion of any Warrants until any such tax shall
have been paid (any such tax being payable by the holder of such Warrant
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
SECTION 2.5. Share Record Date. Each person in whose name any
certificate for [Common][Preferred] Shares is issued upon the exercise of
Warrants shall for all purposes be deemed to have become the holder of record
of the [Common][Preferred] Shares represented thereby on, and such certificate
shall be dated, the date upon which the Warrant Certificate evidencing such
Warrants was duly surrendered and payment of the Warrant Price (and any
applicable transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the [Common][Preferred] Share
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be
dated, the next succeeding business day on which the [Common][Preferred] Share
transfer books of the Company are open. Prior to the exercise of the Warrants
evidenced thereby, the holder of a [Preferred][Common] Share Warrant
Certificate shall not be entitled to any rights of a shareholder of the Company
with respect to shares for which the Warrants shall be exercisable, including,
without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company, except as provided
herein.
SECTION 2.6. Rights Upon Dissolution or Liquidation.
Notwithstanding any other provision of this Agreement relating to the rights of
holders of Warrant Certificates, in the event that, at any time after the date
hereof, there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company, then the Company shall give notice by first-class
mail to each holder of an outstanding Warrant at such holder's address as it
appears on the Warrant Register at the earliest practicable time (and, in any
event, not less than twenty days before any date set for definitive action), of
the date on which such dissolution, liquidation or winding up shall take place,
as the case may be. Such notice shall also specify the date as of which the
holders of record of [Common][Preferred] Shares or other securities, if any,
underlying the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such dissolution,
liquidation or winding up, as the case may be, on which date each holder of
outstanding Warrants shall receive cash or other property (taking into account
the Warrant Price then if effect) which it would have been entitled to receive
had the Warrants been exercisable and exercised immediately prior to such
dissolution, liquidation or winding up and the rights to exercise the Warrants
shall terminate.
<PAGE>
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
[COMMON] [PREFERRED] SHARES PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant Price
specified in Section 2.1 shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Warrant Securities in shares of its Common or Preferred
Shares, (ii) subdivide the outstanding Warrant Securities into a greater number
of shares, (iii) combine the outstanding Warrant Securities into a smaller
number of shares or (iv) issue any shares of its capital stock in a
reclassification of the [Common][Preferred] Shares (including any such
reclassification in connection with a consolidation, merger or share exchange
in which the Company is the continuing corporation), the Warrant Price in
effect at such time shall be adjusted so that the holder of any Warrant
thereafter surrendered for exercise shall be entitled to receive the number of
[Common][Preferred] shares which he would have owned or have been entitled to
receive after the happening of any of the events described above had such
Warrant been exercised immediately prior to the record date in the case of a
dividend or the effective date in the case of a subdivision or combination. An
adjustment made pursuant to this subparagraph (a) shall become effective
immediately after the record date in the case of a dividend, except as provided
in subparagraph (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
holders of [Common][Preferred] Shares entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase [Common] [Preferred] Shares at a price per share less than the current
market price per [Common] [Preferred] Share (as defined for purposes of this
subparagraph (b) in subparagraph (e) below), at the record date for the
determination of stockholders entitled to receive such rights or warrants, the
Warrant Price in effect after such record date shall be determined by
multiplying such Warrant Price by a fraction, the numerator of which shall be
the number of [Common] [Preferred] Shares outstanding at the close of business
on the record date for issuance of such rights or warrants plus the number of
[Common][Preferred] Shares which the aggregate offering price of the total
number of [Common][Preferred] Shares so offered would purchase at such current
market price, and the denominator of which shall be the number of
[Common][Preferred] Shares outstanding at the close of business on the record
date for issuance of such rights or warrants plus the number of additional
[Common][Preferred] Shares receivable upon exercise of such rights or warrants.
Such adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subparagraph (h) below, after such record date. In case such subscription
price may be paid in a consideration part or all of which shall be in a form
other than cash, the value of such consideration shall be as determined by the
Board of Directors of the Company, whose determination shall be conclusive, and
described in a statement filed with the Warrant Agent. [Common][Preferred]
Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Warrant Price shall again be
<PAGE>
adjusted to be the Warrant Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall distribute to all holders of
[Common][Preferred] Shares (including any such distribution made in connection
with a consolidation, merger or share exchange in which the Company is the
continuing corporation) any shares of capital stock of the Company (other than
[Common][Preferred] Shares) or evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained earnings of the
Company or from any surplus legally available for dividends under the laws of
the state of incorporation of the Company and dividends payable in
[Common][Preferred] Shares) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to in
subparagraph (b) above) (any of the foregoing being hereinafter in this
subparagraph (c) called the "Securities"), then, in each such case, unless the
Company elects to reserve such Securities (or, at the option of the Company,
pay cash as provided below) for distribution to the holders of the Warrants
upon the exercise of the Warrants so that any such holder exercising Warrants
will receive such exercise, in addition to the [Common][Preferred] Shares to
which such holder is entitled, the amount and kind of such Securities which
such holder would have received if such holder had, immediately prior to the
record date for the distribution of the Securities, exercised its Warrants into
Warrant Securities (or, at the option of the Company, a sum equal to the value
thereof at the time of distribution as determined by the Company's Board of
Directors in its sole discretion), the Warrant Price shall be adjusted so that
the same shall equal the price determined by multiplying the Warrant Price in
effect immediately prior to the date of such distribution by a fraction the
numerator of which shall be the current market price per share (as defined for
purposes of this subparagraph (c) in subparagraph (e) below) of the
[Common][Preferred] Shares on the record date mentioned above less the then
fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of the Securities so
distributed allocable to one [Common][Preferred] Share, and the denominator of
which shall be the current market price per share (determined as provided in
subparagraph (e) below) of the [Common][Preferred] Share. Such adjustment
shall become effective immediately prior to the opening of business on the day
following the record date for the determination of shareholders entitled to
receive such distribution. In the event that such distribution is not so made,
the Warrant Price shall again be adjusted to be the Warrant Price which would
then be in effect if such date fixed for the determination of shareholders
entitled to receive such distribution had not been fixed.
(d) If, pursuant to subparagraph (b) or (c) above, the number of
shares of Warrant Securities into which a Warrant is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Warrant Securities in the form of
any right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Warrant Price shall forthwith be
adjusted to equal the Warrant Price that would have applied had such right or
warrant never been declared, distributed or issued.
(e) For the purposes of any computation under subparagraph (b)
above, the current market price per [Common][Preferred] Share or of any other
security (herein collectively referred to as a "security") at the date herein
specified shall be deemed to be the average of the reported last sales prices
for the [thirty consecutive Trading Days (as defined below) commencing forty-
<PAGE>
five Trading Days (as defined below) before the date in question] [ten
consecutive Trading Days (as defined below) selected by the Company commencing
not less than twenty nor more than thirty days before the date in question].
For the purpose of any computation under subparagraph (c) above, the current
market price per security on any date shall be deemed to be the average of the
reported last sales prices for the ten consecutive Trading Days before the date
in question. The reported last sales price for each day (whether for purposes
of subparagraph (b) or subparagraph (c)) shall be the reported last sales
price, regular way, or, in case no sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if such security is
not listed or admitted to trading on the New York Stock Exchange at such time,
on the principal national securities exchange on which such security is listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such
security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the security on each such
day shall not have been reported through NASDAQ, the average of the bid and
asked prices for such date as furnished by any New York Stock Exchange member
firm regularly making a market in such security selected for such purpose by
the Board of Directors of the Company or a committee thereof or, if no such
quotations are available, the fair market value of such security as determined
by a New York Stock Exchange member firm regularly making a market in the
[Common][Preferred] Shares selected for such purpose by the Board of Directors
of the Company or a committee thereof. As used herein, the term "Trading Day"
with respect to a security means (x) if such security is listed or admitted for
trading on the New York Stock Exchange or another national securities exchange,
a day on which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if such security is quoted on the National
Market System of the NASDAQ, a day on which trades may be made on such National
Market System or (z) otherwise, any day other than a Saturday or Sunday or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(f) No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least [1%] in such
Warrant Price; provided, however, that any adjustments which by reason of this
paragraph (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
III shall be made to the nearest cent or to the nearest .01 of a share, as the
case may be, with one-half cent and .005 of a share, respectively, being
rounded upward. Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those required by this paragraph (f), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(g) Whenever the Warrant Price is adjusted as herein provided, the
Company shall file with the transfer agent a certificate, signed by [the
Chairman of the Board, the President, any Senior Vice President, or any Vice
President] of the Company, setting forth the Warrant Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness
<PAGE>
of such adjustment; provided, however, that the failure of the Company to file
such officers' certificate shall not invalidate any corporate action by the
Company.
(h) In any case in which this Article III provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (y) issuing to the
holder of any Warrant converted after such record date and before the
occurrence of such event the additional shares of Warrant Securities or other
assets issuable upon such exercise by reason of the adjustment required by such
event over and above the Warrant Securities or other assets issuable upon such
exercise before giving effect to such adjustment and (z) paying to such holder
any amount of cash in lieu of any fractional share; provided, however, that the
Company shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(i) Whenever the Warrant Price is adjusted as provided in Article
III, the Company shall cause to be mailed to each holder of Warrants at its
then registered address by first-class mail, postage prepaid, a notice of such
adjustment of the Warrant Price setting forth such adjusted Exercise Price and
the effective date of such adjusted Exercise Price; provided, however, that the
failure of the Company to give such notice shall not invalidate any corporate
action by the Company.
(j) In the event that at any time, as a result of an adjustment made
pursuant to Section 3.1, the holder of any Warrant thereafter exercised shall
become entitled to receive any shares of capital stock of the Company other
than [Common] [Preferred] Shares, thereafter the number of such other shares so
receivable upon exercise of any Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the shares contained in Section 3.1(a) through
(c), inclusive and the provisions of Sections 2.3, 2.4 and 2.5 with respect to
the [Common] [Preferred] Shares shall apply on like terms to any such other
shares.
(k) All Warrants originally issued by the Company subsequent to any
adjustment made to the Warrant Price hereunder shall evidence the right to
purchase, at the adjusted Warrant Price, the number of [Common] [Preferred]
Shares purchasable from time to time hereunder upon exercise of the Warrants,
all subject to further adjustment as provided herein.
(l) Unless the Company shall have exercised its election as provided
in Section 3.1(m), upon each adjustment of the Warrant Price as a result of the
calculations made in Section 3.1(a),(b) or (c), each Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Warrant Price, that number of shares
(calculated to the nearest hundredth) obtained by (i) multiplying the number of
shares covered by a Warrant immediately prior to this adjustment of the number
of shares by the Warrant Price in effect immediately prior to such adjustment
of the Warrant Price and (ii) dividing the product so obtained by the Warrant
Price in effect immediately after such adjustment of the Warrant Price.
(m) The Company may elect on or after the date of any adjustment of
the Warrant Price to adjust the number of Warrants, in substitution for any
adjustment in the number of [Common] [Preferred] Shares purchasable upon the
exercise of a Warrant as provided in Section 3.2. Each of the Warrants
<PAGE>
outstanding after such adjustment of the number of Warrants shall be
exercisable for one [Common] [Preferred] Share. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the Warrant
Price in effect prior to adjustment of the Warrant Price by the Warrant Price
in effect after adjustment of the Warrant Price. The Company shall make a
public announcement of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Warrant Price is adjusted or any day thereafter, but shall be at least 10
days later than the date of the public announcement. Upon each adjustment of
the number of Warrants pursuant to this subsection (l) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrant Certificates on such record date Warrant Certificates evidencing,
subject to Section 2.4, the additional Warrants to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Warrant Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Warrant Certificates evidencing all the Warrants to which such holders shall be
entitled after such adjustment. Warrant Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Warrant Price) and
shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(n) Irrespective of any adjustment or change in the Warrant Price or
the number of [Common] [Preferred] Shares issuable upon the exercise of the
Warrants, the Warrant Certificates theretofore and thereafter issued may
continue to express the Warrant Price per share and the number of shares which
were expressed upon the initial Warrant Certificates issued hereunder.
(o) Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those adjustments required by this Article III, as it in its sole
discretion shall determine to be advisable in order that any consolidation or
subdivision of the [Common] [Preferred] Shares, issuance wholly for cash of any
[Common] [Preferred] Shares at less than the current market price, issuance
wholly for cash of [Common] [Preferred] Shares or securities which by their
terms are convertible into or exchangeable for Common Shares, stock dividend,
issuance of rights, options or warrants referred to hereinabove in this Article
III, or other event referred to hereinabove in this Article III treated for
Federal income tax purposes as a dividend of stock or stock rights, hereinafter
made by the Company to its common shareholders, shall not be taxable to the
recipients.
[SECTION 3.2. Adjustment of [Common] [Preferred] Shares Purchasable
Upon Exercise of Warrants. The number of Warrant Securities that may be
purchased upon exercise of a Warrant shall be determined by multiplying the
number of [Common] [Preferred] Shares which would otherwise (but for the
provisions of this Section 3.2) be issuable upon such exercise by a fraction of
which (a) the numerator is _________ and (b) the denominator is $_________
minus deductions made from (and/or plus additions to) the Warrant Price
pursuant to Sections 3.1(a) or (c) hereof. The Warrant Price per [Common]
[Preferred] Share shall be adjusted and readjusted from time to time as
provided in this Article III and, as so adjusted or readjusted, shall remain in
<PAGE>
effect until a further adjustment or readjustment thereof is required by this
Article III.]
SECTION 3.3. Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article III, and Warrant Certificates issued after such adjustment may state
the same Warrant Price and the same number of [Common] [Preferred] Shares as
are stated in the Warrant Certificates initially issued pursuant to this
Agreement. The Company, however, may at any time in its sole discretion (which
shall be conclusive) make any change in the form of Warrant Certificate that it
may deem appropriate and that does not affect the substance thereof, and any
Warrant Certificate thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to vote at, or to
receive notice of, any meeting of shareholders of the Company; the consent of
action or proceeding of the Company; no such holder, by reason of the ownership
or possession of a Warrant or the Warrant Certificate representing the same,
either at, before or after exercising such Warrant, shall have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the stockholders of the Company prior to the
date of the exercise of such Warrant; and no such holder shall have any right
not expressly conferred by the Warrant or Warrant Certificate that such holder
holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company, and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
<PAGE>
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance. In case any of the following shall occur while
any Warrants are outstanding: [(a) any reclassification or change of the
outstanding shares of Warrant Securities (other than a change in par value, or
from par value to no par value, or as a result of a subdivision or combination
of the Warrant Securities);] or (b) any consolidation, merger, share exchange
or combination of the Company with or into another corporation (other than a
merger or consolidation of the Company in which the Company is the continuing
corporation and which does not result in any reclassification or change of
outstanding [Common][Preferred] Shares) as a result of which holders of Warrant
Securities shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Warrant
Securities; or (c) any sale or conveyance of the property or assets of the
Company as, or substantially as, an entirety to any other entity as a result of
which holders of Warrant Securities shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Warrant Securities; then the Company, or such successor or
purchasing corporation, as the case may be, shall make appropriate provision by
amendment of this Agreement or otherwise so that the holders of the Warrants
then outstanding shall have the right at any time thereafter, upon exercise of
such Warrants, to receive the kind and amount of shares of stock and other
securities and property or assets receivable upon such reclassification,
change, consolidation, merger, share exchange, combination, sale or conveyance
[(or at the option of the Company, a sum equal to the value thereof at the time
of the distribution as determined by the Board of Directors in its sole
discretion)] as would be received by a holder of the number of shares of
Warrant Securities issuable upon exercise of such Warrant immediately prior to
such reclassification, change, consolidation, share exchange, merger, sale or
conveyance, and, in the case of a consolidation, merger, share exchange, sale
or conveyance the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such reclassification, change, consolidation, merger, sale or
<PAGE>
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, merger, share
exchange, consolidation, sale or conveyance complies with the provisions of
this Section 4.4.
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates, [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction
with an exchange or transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security on the register of the Offered
Securities shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or ________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part;
provided that such other Warrant Certificates evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. The Warrant
Agent shall keep, at its corporate trust office [and at ________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an authorized
officer of the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange or registration of
transfer which will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange or
registration of transfer.
SECTION 5.2. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
<PAGE>
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date, and] [P]rior to due presentment of a Warrant Certificate for registration
for registration of transfer, the Company, the Warrant Agent and all other
persons may treat the holder of a Warrant Certificate as the owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 5.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints [Warrant
Agent] as Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the conditions herein set
forth; and [Warrant Agent] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 6.2. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the costs and expenses
of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
<PAGE>
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the advice of such
counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body
of holders of Warrant Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the Company,
the Warrant Agent shall have no liability for interest on any monies at any
time received by it pursuant to any of the provisions of this Agreement or of
the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
<PAGE>
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 7.2 hereof, to make any demand upon
the Company.
SECTION 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 6.2(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or under any other applicable Federal or
State bankruptcy, insolvency or similar law or shall consent to the appointment
of or taking possession by a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Warrant Agent or its
property or affairs, or shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of any such action,
or a decree or order for relief by a court having jurisdiction in the premises
shall have been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises shall have been
entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or similar official) of the Warrant Agent or of its
property or affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named Warrant Agent
<PAGE>
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation to
which the Warrant Agent shall be a party ,or any corporation to which
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]
[SECTION 7.1. Redemption. The Company may, at its option, at any
time from and after __________ __, ____ and at or prior to 5:00 p.m., [New York
time], on the earlier of the Scheduled Share Conversion Date or the Accelerated
Share Conversion Date (as defined in Section 7.2, redeem all but not less than
all of the then outstanding Warrants at a redemption price of $__ per Warrant,
subject to adjustment pursuant to the provisions of Section 7.3(b). Such
price, as the same may be from time to time adjusted, is hereinafter referred
to as the "Redemption Price." If the Company should desire to exercise such
right to redeem all of the then outstanding Warrants, it will give notice of
such redemption to the holders thereof as follows:
Notice of such redemption to holders of Warrants shall be mailed to
all such holders not less than 30 nor more than 90 days prior to the date fixed
for redemption to their last addresses as they appear upon the registry books
of the Warrant Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of redemption will specify the date fixed for redemption
("Redemption Date") and the Redemption Price. The notice will state that
payment of the Redemption Price will be made at the office or agency of the
Warrant Agent or at the option of the Company at a specified office of the
Company in the City of Dallas, State of Texas, upon presentation and surrender
of such Warrants, and will also state that the right to exercise the Warrants
will terminate at the close of business on the business day immediately
preceding the Redemption Date.
On or before the Redemption Date, the Company shall deposit with the
Warrant Agent funds in form satisfactory to the Warrant Agent sufficient to
redeem the then outstanding Warrants at the Redemption Price.]
[SECTION 7.2. Accelerated Share Conversion Date. If the price of a
[Common] [Preferred] Share (as determined pursuant to the second sentence of
Section 3.1(e)) for each of 10 consecutive trading days is at least $___,
subject to adjustment pursuant to the provisions of Section 7.3(b) (such price,
as the same may from time to time be adjusted, is hereinafter referred to as
the "Acceleration Price"), then the Company may, at its option, accelerate the
<PAGE>
date on which the Warrants shall be converted into [Common] [Preferred] Shares
and cease to be exercisable. If the Company shall so accelerate such date, it
shall give notice of such acceleration within 30 days after the end of any such
10 consecutive trading day period to the holders of Warrants as follows:
Notice of such acceleration shall be mailed to all holders of
Warrants not less than 30 nor more than 90 days prior to the date specified in
such notice as the date on which the Warrants shall be converted into [Common]
[Preferred] Shares and cease to be exercisable (the "Accelerated Share
Conversion Date") to their last addresses as they appear upon the registry
books of the Warrant Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of acceleration will specify the Accelerated Share Conversion
Date and the Acceleration Price.]
[SECTION 7.3. Conversion of Warrants into Shares. (a) To the
extent that any Warrant Certificates remain outstanding at the expiration of
the period during which the Warrants are exercisable, as set forth in Section
2.3(a) hereof, the unexercised Warrants represented thereby shall be converted
automatically into [Common] [Preferred] Shares at the rate of [ ] [Common]
[Preferred] Share[s] for each [ ] Warrants. The registered holders of such
Warrant Certificates shall be deemed to have become holders of record of such
[Common] [Preferred] Share or Shares as of the date of such conversion. If the
number of [Common] [Preferred] Shares purchasable upon the exercise of each
Warrant is adjusted pursuant to Section 3.2, the rate at which [Common]
[Preferred] Shares are issued upon such conversion of unexercised Warrants at
the expiration of the period during which the Warrants are exercisable shall be
adjusted in order that the total number of [Common] [Preferred] Shares issued
for each [ ] unexercised Warrants at such expiration equals the number of
such shares purchasable upon the exercise of each Warrant after such
adjustment. Notwithstanding the foregoing provisions of this Section 7.3, no
fractional [Common] [Preferred] Shares shall be issuable upon such conversion.
In lieu of fractional shares, there shall be paid to the registered holders of
Warrant Certificates at the time such Warrant Certificates are so converted an
amount in cash equal to the same fraction of the current market value of a
[Common] [Preferred] Share. For the purposes of this Section 7.3, the current
market value of a [Common] [Preferred] Share shall be the closing price of a
[Common] [Preferred] Share (as determined pursuant to the second sentence of
Section 3.1(e)) for the trading day immediately prior to the date of such
conversion. After such conversion of outstanding and unexercised Warrants into
[Common] [Preferred] Shares, the holder of any Warrant Certificate representing
such Warrants shall surrender the same to the Warrant Agent (or, if this
Agreement shall have been terminated, to the transfer agent for [Common]
[Preferred] Shares) and such holder shall be entitled, upon such surrender, to
receive in exchange therefor a certificate or certificates representing the
number of whole [Common] [Preferred] Shares into which such Warrants shall have
been converted as aforesaid and payments as aforesaid for any fractional share
represented thereby (without interest). Unless and until so surrendered, such
Warrant Certificates shall be deemed for all purposes (subject to the further
provisions of this paragraph) to evidence the ownership of the whole number of
[Common] [Preferred] Shares into which the Warrants evidenced thereby have been
so converted. Unless and until any such Warrant Certificate shall be so
surrendered, dividends or distributions payable to holders of record of
[Common] [Preferred] Shares shall not be paid to the holder of any such Warrant
Certificate not surrendered, but there shall be paid to the record holder of
such Warrant Certificate, with respect to the [Common] [Preferred] Shares
issued upon such conversion therefor, (i) upon such surrender the amount of the
<PAGE>
dividends or distributions which shall theretofore have become payable thereon,
but without interest, and (ii) after such surrender, the amount of any dividend
or distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such payment
date.
(b) Upon each adjustment of the Warrant Price of the Warrants, the
Redemption Price and the Acceleration Price in effect immediately prior to the
adjustment shall be adjusted to be a price equal to the product of the
Redemption Price or the Acceleration Price, as the case may be, in effect
immediately prior to the adjustment of the Warrant Price multiplied by a
fraction the numerator of which is the Warrant Price which was in effect
immediately after the adjustment of the Warrant Price and the denominator of
which is the Warrant Price immediately prior to such adjustment.]
SECTION 7.4. Notice of Proposed Actions. In case the Company shall
propose (a) to pay any dividend payable in stock of any class to the holders of
its Common [or Preferred] Shares or to make any other distribution to the
holders of its Common [or Preferred] Shares (other than a cash dividend), or
(b) to offer to the holders of its Common Shares rights or warrants to
subscribe for or to purchase any additional Common Shares or shares of stock of
any class or any other securities, rights or options, or (c) to effect any
reclassification of its Common [or Preferred] Shares (other than a
reclassification involving only the subdivision or combination of outstanding
Common [or Preferred] Shares), or (d) to effect any consolidation, merger,
share exchange or sale, transfer or other disposition of all or substantially
all of the property, assets or business of the Company, or (e) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Warrant, in accordance with Section
8.2, a notice of such proposed action, which shall specify the record date for
the purposes of such stock dividend, distribution or rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of Common [or Preferred] Shares,
if any such date is to be fixed, and such notice shall be so given in the case
of any action covered by clause (a) or (b) above at least ten days prior to the
record date for determining holders of the Common [or Preferred] Shares for
purposes of such action, and in the case of any such action, at least ten days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Common [or Preferred] Shares, whichever
shall be the earlier. The failure to give notice required by this Section 7.4
or any defect therein shall not affect the legality or validity of the action
taken by the Company or the vote upon any such action.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Amendment. (a) This Agreement and the Warrant
Certificates may be amended by the Company and the Warrant Agent, without the
consent of the registered holders of the Warrant Certificates or the Warrant
holders, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Warrant Agent in accordance
with Section 6.3 or in any other manner which the Company may deem to be
<PAGE>
necessary or desirable and which will not materially and adversely affect the
interests of the Warrant holders.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
that no such modification or amendment that decreases or increases the Warrant
Price, shortens the period of time during which the Warrants may be exercised,
or otherwise materially and adversely affects the exercise rights of the
holders or reduces the percentage of outstanding Warrants the consent of the
holders of which is required for modification or amendment of this Agreement or
the Warrant Certificates, may be made without the consent of each Warrant
holder affected thereby.
SECTION 8.2. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 8.3. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to [Warrant
Agent], _____________, Attention: ____________________ and any communication
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to Triton Energy Corporation, 6688 North Central Expressway, Suite
1400, Dallas, Texas 75206, Attention: ________________ (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
SECTION 8.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.5. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and
the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant
Agent will deliver to the holder of the Warrant Certificate evidencing such
Warrant, prior to or concurrently with the delivery of the Warrant Securities
issued upon such exercise, a Prospectus. The Warrant Agent shall not, by
reason of any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
SECTION 8.6. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
<PAGE>
SECTION 8.7. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any legal or equitable right,
remedy or claim under or by reason of this Agreement.
SECTION 8.8. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 8.9. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 8.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, Triton Energy Corporation and [Warrant Agent]
have caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
TRITON ENERGY CORPORATION
By _________________________
Title:
Attest:
_________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
_________________________
Title:
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to _______________ this Warrant
Securities with Warrants which Certificate cannot be transferred or
are not immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are Prior to _______________, Warrants
not immediately exercisable. evidence by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRITON ENERGY CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY] TIME ON _______________ OR EARLIER IF NOTICE
OF REDEMPTION OR ACCELERATION IS GIVEN
No. __________ __________ Warrants
This certifies that [the bearer is the] [
or registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such owner [if Offered Securities with
Warrants which are not immediately detachable -- , subject to the registered
owner qualifying as a "holder" of this Warrant Certificate, as hereinafter
defined] to purchase, at any time [after 5 P.M., [New York City] time, on
_______________ and] on or before [the earliest of (i)] 5 P.M. [New York City]
time on __, __, [(ii) the Accelerated Share Conversion Date as defined in the
Warrant Agreement (referred to herein) or (iii) the business day immediately
prior to the Redemption Date as defined in the Warrant Agreement,] [Common
Shares, par value $1.00 per share] [Preferred Shares, no par value] (the
"Warrant Securities"), of Triton Energy Corporation (the "Company"), issued and
to be issued under the Warrant Agreement (as hereinafter defined), on the
following basis: during the period from _______________, through and including
_______________ the exercise price of each Warrant will be $________ per share;
during the period from _______________, through and including _______________,
the exercise price of each Warrant will be $________ per share (the "Warrant
Price"). No adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant.
The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full in lawful money of the United States of America [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] in immediately available funds, the Warrant Price for
<PAGE>
each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ____________] currently
at the address specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable -- , prior to ____________
(the "Detachable Date"), the registered owner of the Company's [title of
Offered Securities] to which this Warrant Certificate is initially attached,
and after such Detachable Date,] the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 5.1 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form in
denominations of ____________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of
the Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent [and at ____________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ____________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
The Warrants evidenced by this Certificate may be redeemed by the
Company at its option at any time from and after [ ] but before they are
converted into [Common] [Preferred] Shares, at a redemption price of [ ] per
<PAGE>
Warrant subject to adjustment, in accordance with the terms of the Warrant
Agreement.
If the price of a [Common] [Preferred] Share (determined in
accordance with the Warrant Agreement) for each of 10 consecutive trading days
is at least [ ] (subject to adjustment as provided in the Warrant Agreement),
the Company may, at its option, accelerate the date on which the Warrants shall
be converted into [Common] [Preferred] Shares and cease to be exercisable.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be converted into [ ] [Common] [Preferred] Share
for each [ ] unexercised Warrants hereunder (subject to adjustments as provided
in the Warrant Agreement). After such conversion of outstanding Warrants
represented by this Warrant Certificate into [Common] [Preferred] Shares, the
holder of this Warrant Certificate shall surrender the same to the Warrant
Agent (or, if the Warrant Agreement shall have been terminated, to the transfer
agent for [Common] [Preferred] Shares) and the holder shall be entitled, upon
such surrender, to receive in exchange therefor a certificate or certificates
representing the number of whole [Common] [Preferred] Shares into which such
Warrants shall have been converted as aforesaid. Unless and until so
surrendered, this Warrant Certificate shall be deemed for all purposes (subject
to the further provisions of this paragraph) to evidence the ownership of the
whole number of [Common] [Preferred] Shares into which the Warrants evidenced
thereby have been so converted. Unless and until this Warrant Certificate
shall be so surrendered, dividends or distributions payable to holders of
record of Common Shares shall not be paid to the holder of this Warrant
Certificate, but there shall be paid to the record holder of this Warrant
Certificate, with respect to the [Common] [Preferred] Shares issued upon such
conversion therefor, (i) upon such surrender, the amount of the dividends or
distributions which shall theretofore have become payable thereon, but without
interest, and (ii) after such surrender, the amount of any dividend or
distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such payment
date.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of [Common]
[Preferred] Shares or of any other securities of the Company which may at any
time be issuable on the exercise or conversion thereof, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or
any right to vote upon any mater submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issue of stock, reclassification of stock, change of par
value, consolidation, share exchange, merger, conveyance, or otherwise) or,
except as provided in the Warrant Agreement, to receive notice of meetings, or
to receive dividends or subscription rights or otherwise, until the Warrant or
Warrants evidenced by this Warrant Certificate shall have been exercised or
converted as provided in the Warrant Agreement.
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _______________
TRITON ENERGY CORPORATION
By: __________________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [Warrant Agent], [corporate trust
department] [insert address of Warrant Agent], Attn. __________ [or
____________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and
present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth
below. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the [payment] [wire
transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by this Warrant Certificate, to purchase ____________
[Common Shares] [Preferred Shares] of American Express Company (the "Warrant
Securities") and represents that he has tendered payment for such Warrant
Securities in Dollars [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds to the order of Triton Energy Corporation, c/o [insert name and
address of Warrant Agent], in the amount of ____________ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________
Signature Guaranteed Signature_____________________
_____________________________ (Signature must conform in all
respects to name of holder as
specified on face of this Warrant
Certificate and must bear a
signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchanges)
<PAGE>
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificated evidencing unexercised Warrants -- complete as
appropriate.]
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto
______________________________
(Please print name)
______________________________
(Address)
______________________________
(City, including zip code)
<PAGE>
______________________________
(Please insert social security
or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock Exchange)
Signature Guaranteed
______________________________
Exhibit 4.6
==============================================================================
TRITON ENERGY CORPORATION
and
[WARRANT AGENT]
As Warrant Agent
______________
Warrant Agreement -- Debt Securities
Dated as of , 199_
______________
==============================================================================
<PAGE>
____________________
[FN]
<F1> Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities.
<PAGE>
TRITON ENERGY CORPORATION
Form of Debt Warrant Agreement<F1>
THIS WARRANT AGREEMENT dated as of __________, 199_ between Triton
Energy Corporation, a Texas corporation (hereinafter called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to) and _________________________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "[Senior]
[Senior Subordinated] [Subordinated] Indenture") dated as of [FOR SENIOR DEBT:
_______________, between the Company and Chemical Bank, as trustee (the "Senior
Trustee")] [FOR SENIOR SUBORDINATED DEBT: December 15, 1993, between the
Company and United States Trust Company of New York, as trustee (the "Senior
Subordinated Trustee"), as supplemented by the _______ Supplemental Indenture
dated as of _______________] [FOR SUBORDINATED DEBT: __________________,
between the Company and ____________________, as trustee (the "Subordinated
Trustee")], providing for the issuance from time to time of its unsecured
[senior] [senior subordinated] [subordinated] debentures, notes or other
evidences of indebtedness (the "[Senior] [Senior Subordinated] [Subordinated]
Debt Securities"), to be issued in one or more series as provided in the
[Senior] [Senior Subordinated] [Subordinated] Indenture; [if Warrant Securities
are not under same Indenture as Debt Securities to which they are attached --
and an Indenture (the "[Senior] [Senior Subordinated] [Subordinated]
Indenture," the Senior, Senior Subordinated and Subordinated Indentures being
referred to collectively as the "Indentures") dated as of ____________ between
the Company and ____________________, as trustee (the "[Senior] [Senior
Subordinated] [Subordinated] Trustee," (the Senior, Senior Subordinated and
Subordinated Trustees being referred to collectively as the "Trustee"),
providing for the issuance from time to time of its [senior] [senior
subordinated] [subordinated] debentures, notes or other evidences of
indebtedness (the "[Senior] [Senior Subordinated] [Subordinated] Debt
Securities", the [Senior] [Senior Subordinated] and [Subordinated] Debt
Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [ ] Indenture];
and
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
Securities or Preferred Shares -- [title of Debt Securities or Preferred Shares
being offered] (the "Offered Securities") with] warrant certificates evidencing
one or more warrants (the "Warrants" or individually a "Warrant") representing
the right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
<PAGE>
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _______________ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of ____________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence __________ Warrants for each [__________ principal amount] [________
shares] of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in [registered] [bearer] form
substantially in the form set forth in Exhibit A hereto, shall be dated
____________ and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be executed on behalf of the Company by [the Chairman of the Board, the
President, any Senior Vice President or any Vice President and by the Secretary
or any Assistant Secretary] under its corporate seal reproduced thereon. Such
signatures may be manual or facsimile signatures of such authorized officers
and may be imprinted or otherwise reproduced in the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
<PAGE>
officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean [the bearer of such Warrant Certificate] [any person in whose name
at the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date]].
SECTION 1.3. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
____________ aggregate principal amount of Warrant Securities (except as
provided in Sections 1.4, 2.3(c), 3.2 and ____) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of
Warrant Certificates duly executed on behalf of the Company, countersign
Warrant Certificates evidencing Warrants representing the right to purchase up
to __________ principal amount of Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or
in connection with their transfer, as hereinafter provided or as provided in
Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company, the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates which are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determined, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office
of the Warrant Agent [or _______________], without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
<PAGE>
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. During the period from ____________,
through and including ____________, the exercise price of each Warrant shall be
__________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________. During the period from __________, through and
including __________, the exercise price of each Warrant will be __________
plus [accrued amortization of the original issue discount] [accrued interest]
from ____________. [In each case, the original issue discount will be
amortized at a ____% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months].
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant Price". [The original issue discount for each __________
principal amount of Warrant Securities is ____________.]
SECTION 2.2. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[____________] and at or before 5 P.M., [New York City time], on ____________
[or such later date as the Company may designate, by notice to the Warrant
Agent and the holders of Warrant Certificates mailed to their addresses as set
forth in the record books of the Warrant Agent] (the "Expiration Date"). Each
Warrant not exercised at or before 5 P.M., [New York City time], on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.3. Exercise of Warrants. (a) During the period specified
in Section 2.2 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in lawful money of the United States of America [in cash
or by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] [in immediately available funds] the Warrant
Price for each Warrant exercised, to the Warrant Agent at its corporate trust
office [or at ____________], provided that such exercise is subject to receipt
within five business days of such [payment] [wire transfer] by the Warrant
Agent of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly
completed and duly executed [including any applicable certifications if the
Warrant Securities are issuable in bearer form]. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the end of each
day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating
to the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
<PAGE>
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or such Trustee shall reasonable
require.
(c) As promptly as practicable after the exercise of any Warrant,
the Company shall issue, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
holder. If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities, and in the event that
any such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture relating to the Warrant
Securities.
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the Ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company, and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
<PAGE>
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
SECTION 3.4. Consolidation, Merger, Sale or Conveyance. If at any
time there shall be a consolidation merger, sale or conveyance to which Article
___ of the Indenture relating to the Warrant Securities applies, then in any
such event the successor or assuming corporation referred to therein shall
succeed to and be substituted for the Company, with the same effect, subject to
such Indenture, as if it had been named herein and in the Warrant as the
Company; the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name
pursuant to such Indenture, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Warrants had been issued at the date of
the execution hereof. In any case of any such consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance
complies with the provisions of this Section 3.4 and such Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.1. Exchange and Transfer of Warrant Certificates, [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchanged or transferred
only together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction
with an exchange or transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security on the register of the Offered
Securities shall operate also to transfer the related Warrant Certificates.
<PAGE>
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or ________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. [The Warrant
Agent shall keep, at its corporate trust office [and at ________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall be
made for any exchange [or registration of transfer] of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge that may be imposed in connection with
any such exchange [or registration of transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or registration of transfer], an
authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange [or registration of
transfer] which will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange [or registration of
transfer] of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificate surrendered for such exchange
[or registration of transfer].
SECTION 4.2. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date,] [if registered Warrants -- and prior to due presentment of a Warrant
Certificate for registration for registration of transfer,] the Company, the
Warrant Agent and all other persons may treat the holder of a Warrant
Certificate as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.
SECTION 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange[, registration of transfer] or exercise
of the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
<PAGE>
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.1. Warrant Agent. The Company hereby appoints
__________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and __________________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.2. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the costs and expenses
of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the advice of such
counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body
of holders of Warrant Securities or other obligations of the Company as freely
<PAGE>
as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the Company,
the Warrant Agent shall have no liability for interest on any monies at any
time received by it pursuant to any of the provisions of this Agreement or of
the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.
SECTION 5.3. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.2(a) shall continue to
<PAGE>
the extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or under any other applicable Federal or
State bankruptcy, insolvency or similar law or shall consent to the appointment
of or taking possession by a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Warrant Agent or its
property or affairs, or shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of any such action,
or a decree or order for relief by a court having jurisdiction in the premises
shall have been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises shall have been
entered for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or similar official) of the Warrant Agent or of its
property or affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party or any corporation to
which the Warrant Agent shall be a party ,or any corporation to which
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
<PAGE>
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendment. (a) This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided
that such action shall not affect adversely the interests of the holders of the
Warrant Certificates.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of not fewer than a
majority in number of the then outstanding unexercised Warrants affected by
such modification or amendment, for any purpose; provided, however, that no
such modification or amendment that decreases or increases the Exercise Price,
shortens the period of time during which the Warrants may be exercised or
otherwise materially and adversely affects the exercise rights of the Holders
or reduces the percentage of outstanding Warrants the consent of the holder of
which is required for modification or amendment of this Agreement or the
Warrant Certificates, may be made without the consent of each holder affected
thereby.
SECTION 6.2. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.3. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
____________________________________, _____________, Attention:
____________________ and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Triton Energy
Corporation, 6688 North Central Expressway, Suite 1400, Dallas, Texas 75206,
Attention: ________________ (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
SECTION 6.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.5. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and
the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant
Agent will deliver to the holder of the Warrant Certificate evidencing such
Warrant, prior to or concurrently with the delivery of the Warrant Securities
issued upon such exercise, a Prospectus. The Warrant Agent shall not, by
reason of any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
SECTION 6.6. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
<PAGE>
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.7. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.8. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.9. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, Triton Energy Corporation and
______________________________ have caused this Agreement to be signed by their
respective duly authorized officers, and their respective corporate seals to be
affixed hereunto, and the same to be attested by their respective Secretaries
or one of their respective Assistant Secretaries, all as of the day and year
first above written.
TRITON ENERGY CORPORATION
By _____________________
Title:
Attest:
_________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
_________________________
Title:
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to _______________ this Warrant
Securities with Warrants which Certificate cannot be transferred or
are not immediately detachable. exchanged unless attached to a [Title of
Offered Securities].]
[Form of Legend if Warrants are Prior to _______________, Warrants
not immediately exercisable. evidence by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRITON ENERGY CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON _______________
No. __________ __________ Warrants
This certifies that [the bearer is the] [
or registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such owner [if Offered Securities with
Warrants which are not immediately detachable -- , subject to the [bearer]
[registered owner] qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined] to purchase, at any time [after 5 P.M., [New York City
time], on _______________ and] on or before 5 P.M., [New York City time], on
_______________, __________ principal amount of [Title of Warrant Securities]
(the "Warrant Securities"), of Triton Energy Corporation (the "Company"),
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: during the period from _______________, through and including
_______________ the exercise price of each Warrant will be ________ plus
[accrued amortization of the original issue discount] [accrued interest] from
_______________; during the period from _______________, through and including
_______________, the exercise price of each Warrant will be ________ plus
[accrued amortization of the original issue discount] [accrued interest] from
_______________; [in each case, the original issue discount will be amortized
at a ___% annual rate, computed on an annual basis using the "interest" method
and using a 360-day year consisting of twelve 30-day months] (the "Warrant
Price"). [The original issue discount for each ________ principal amount of
Warrant Securities is ________.] The holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof,
including any applicable certifications if the Warrant Securities are issuable
in bearer form, and by paying in full in lawful money of the United States of
America [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available
funds, the Warrant Price for each Warrant exercised to the Warrant Agent (as
<PAGE>
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office
of ____________________, or its successor as warrant agent (the "Warrant
Agent"), [or ____________] currently at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable -- , prior to ____________
(the "Detachable Date"), the registered owner of the Company's [title of
Offered Securities] to which this Warrant Certificate is initially attached,
and after such Detachable Date,] [the bearer of this Warrant Certificate] [the
person in whose name at the time this Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for that purpose pursuant
to Section 4.1 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form in
denominations of ____________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ____________ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of
the Warrant Agreement are on file at the above-mentioned office of the Warrant
Agent [and at _______________].
The Warrant Securities to be issued and delivered upon the exercise
of the Warrants evidenced by this Warrant Certificate will be issued under and
in accordance with an indenture (the "Indenture"), dated as of [FOR SENIOR
DEBT: ________________, between the Company and Chemical Bank] [FOR SENIOR
SUBORDINATED DEBT: December 15, 1993, as supplemented by the _________
Supplemental Indenture, dated as of __________, 199_ between the Company and
United States Trust Company of New York] [FOR SUBORDINATED DEBT:
_______________, between the Company and ______________________________,] as
trustee (the "Trustee"), and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture and the form of the
Warrant Securities are on file at the corporate trust office of the Trustee
[and at _______________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ____________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.] [effected by delivery and the Company and the Warrant Agent may
treat the bearer hereof as the owner for all purposes.]
<PAGE>
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any
of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________, 199_.
TRITON ENERGY CORPORATION
By: _____________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to _____________________, [corporate trust
department] [insert address of Warrant Agent], Attn. __________ [or
____________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, the
holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by this Warrant Certificate, to purchase ____________
principal amount of the [Title of Warrant Securities ] (the "Warrant
Securities") of Triton Energy Corporation and represents that he has tendered
payment for such Warrant Securities in Dollars [in cash or by certified check
or official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of Triton Energy
Corporation, c/o _________________________, [address of Warrant Agent], in the
amount of ____________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
<PAGE>
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________
[If registered Warrant -- Signature_____________________
Signature Guaranteed [If registered Warrant --
_____________________________] (Signature must conform in all
respects to name of holder as
specified on face of this Warrant
Certificate and must bear a
signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchanges]
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificated evidencing unexercised Warrants -- complete as
appropriate.]
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York, Midwest
or Pacific Stock Exchange
Signature Guaranteed
______________________________
Exhibit 5.1
Jackson & Walker, L.I.P.
Attorneys and Counselors
901 Main Street
Suite 6000
Dallas, Texas 75202-3797
(214) 953-6000
October 18, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration
Statement on Form S-3 filed with the Securities and Exchange Commission (the
"Commission") on September 2, 1994 (the "Registration Statement") by Triton
Energy Corporation, a Texas corporation (the "Company"), under the Securities
Act of 1933, as amended (the "Act"), relating to (i) unsecured debt securities
of the Company ("Debt Securities"), (ii) shares of preferred stock, without par
value, of the Company ("Preferred Stock"), (iii) shares of common stock, par
value $1.00 per share, of the Company ("Common Stock"), and (iv) warrants (the
"Warrants") to purchase Debt Securities, Preferred Stock or Common Stock (the
Debt Securities, Preferred Stock, Common Stock and Warrants are collectively
referred to herein as the "Securities"), to be issued and sold by the Company
from time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $300,000,000.
We are familiar with (i) the Restated Articles of Incorporation and
By-Laws of the Company, each as amended to date; (ii) the Senior Indenture to
be executed by the Company and Chemical Bank, as trustee (the "Senior Debt
Indenture"), the Senior Subordinated Indenture, dated as of December 15, 1993,
between the Company and U.S. Trust Company, as trustee (the "Senior
Subordinated Debt Indenture") and the Subordinated Indenture to be executed by
the Company and a subordinated debt trustee (the "Subordinated Debt
Indenture"), pursuant to which Debt Securities may be issued and (iii) the
originals, or copies certified or otherwise identified to us, of corporate
records, certificates of public officials and of representatives of the
Company, and statutes and other instruments and documents, as a basis for the
opinions hereafter expressed.
In connection with this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective; (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby; (iii) all Securities issued will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement; (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto; and (v) any Securities
issuable upon conversion, exchange or exercise of any Security being offered
will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange or exercise.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to shares of Common Stock, when (i) the Board of
Directors of the Company or, to the extent permitted by the Texas Business
<PAGE>
Corporation Act, a duly constituted and acting committee thereof (such Board of
Directors or committee being hereinafter referred to as the "Board"), has taken
all necessary corporate action to approve the issuance of and the terms of the
offering of the shares of Common Stock and related matters, and (ii)
certificates representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered either (a) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Common Stock) provided for therein, or (b) upon conversion or
exercise of any other Security, in accordance with the terms of such Security
or the instrument governing such Security providing for such conversion or
exercise as approved by the Board, for the consideration approved by the Board
(not less than the par value of the Common Stock), the shares of Common Stock
will be duly authorized, validly issued, fully paid and non-assessable.
2. With respect to shares of Preferred Stock, when (i) the Board
has taken all necessary corporate action to approve the issuance and terms of
the shares of Preferred Stock, the terms of the offering thereof and related
matters, including the adoption of a Certificate of Designation relating to
such Preferred Stock (a "Certificate") and the filing of such Certificate with
the Secretary of State of the State of Texas and (ii) certificates representing
the shares of Preferred Stock have been duly executed, countersigned,
registered and delivered either (a) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board
upon payment of the consideration therefor (not less than the par value of the
Preferred Stock) provided for therein, or (b) upon conversion or exercise of
any other Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion or exercise as
approved by the Board, for the consideration approved by the Board (not less
than the par value of the Preferred Stock), the shares of Preferred Stock will
be duly authorized, validly issued, fully paid and non-assessable.
3. With respect to Debt Securities to be issued under the Senior
Debt Indenture, when (i) the Senior Debt Indenture has been duly authorized and
validly executed and delivered by the Company to the trustee, (ii) the Senior
Debt Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended, (iii) the Board has taken all necessary corporate action to approve
the issuance and terms of such Debt Securities, the terms of the offering
thereof and related matters, and (iv) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the provisions
of the Senior Debt Indenture and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of the
consideration therefor provided for therein, such Debt Securities will be
legally issued and will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
4. With respect to Debt Securities to be issued under the Senior
Subordinated Debt Indenture, when (i) the Senior Subordinated Debt Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended, (ii)
the Board has taken all necessary corporate action to approve the issuance and
terms of such Debt Securities, the terms of the offering thereof and related
matters, and (iii) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Senior Debt
<PAGE>
Indenture and the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein, such Debt Securities will be legally issued and will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such enforcement is
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
5. With respect to Debt Securities to be issued under the
Subordinated Debt Indenture, when (i) the Subordinated Debt Indenture has been
duly authorized and validly executed and delivered by the Company to the
trustee, (ii) the Subordinated Debt Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, (iii) the Board has taken all
necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters, and (iv)
such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Senior Debt Indenture and
the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor provided for therein,
such Debt Securities will be legally issued and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
6. With respect to the Warrants, when (i) the Board has taken all
necessary corporate action to approve the creation of and issuance and terms of
the Warrants, the terms of the offering thereof and related matters, (ii) the
Warrant Agreement or Agreements relating to the Warrants have been duly
authorized and validly executed and delivered by the Company and the Warrant
Agent appointed by the Company, and (iii) the Warrants or certificates
representing the Warrants have been duly executed, countersigned, registered
and delivered in accordance with the appropriate Warrant Agreement or
Agreements and the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein, the Warrants will be duly authorized and validly issued.
We hereby consent to the filing of this opinion of counsel as Exhibit
5.1 to the Registration Statement and to the use of our name under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
JACKSON & WALKER L.L.P.
Exhibit 12.1
TRITON ENERGY CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Thousands, except ratios)
<TABLE>
<CAPTION>
Three months ended
August 31, Years ended May 31,
--------------------- --------------------------------------------------------------
1994 1993 1994 1993 1992 1991 1990
--------- --------- --------- ----------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined <F1>:
Interest charges . . . . . . . . . . $ 8,713 $ 5,889 $ 26,951 $ 16,336 $ 11,066 $28,056 $ 33,181
Preferred dividend requirements of
subsidiaries adjusted to
pre-tax basis . . . . . . . . . . . -- 364 364 1,551 1,780 2,330 2,498
------- ------- -------- --------- -------- ------- --------
Total fixed charges . . . . . . . 8,713 6,253 27,315 17,887 12,846 30,386 35,679
======= ======= ======== ========= ======== ======= ========
Earnings as defined <F1><F3>:
Earnings (loss) from continuing
operations before income taxes,
minority interest, extraordinary
items and cumulative effect of
accounting change . . . . . . . . (6,682) 33,748 (27,198) (152,778) (97,387) 16,511 (52,901)
Fixed charges, above . . . . . . . . 8,713 6,253 27,315 17,887 12,846 30,386 35,679
Less interest capitalized . . . . . (5,438) (1,952) (16,863) (6,407) (6,529) (5,879) (7,180)
Plus undistributed (earnings)
loss of affiliates . . . . . . . . (648) (362) (645) 3,012 2,558 (2,604) (246)
Less preferred dividend
requirements of subsidiaries
adjusted to pre-tax basis . . . . -- (364) (364) (1,551) (1,780) (2,330) (2,498)
------- ------- -------- --------- -------- ------- --------
$(4,055) $37,323 $(17,755) $(139,837) $(90,292) $36,084 $(27,146)
------- ------- -------- --------- -------- ------- --------
Ratio of earnings to fixed
charges <F2><F3> . . . . . . . . . . -- 6.0 -- -- -- 1.2 --
======= ======= ======== ========= ======== ======= ========
<PAGE>
____________________
<FN>
<F1> Earnings include the Company's equity in the losses of an affiliate
whose debt is guaranteed by the Company. Related interest charges for
the years ended May 31, 1992, 1991 and 1990 of $819,000, $802,000 and
$240,000, respectively, were excluded from fixed charges due to the
improbability that such guarantees would be honored.
<F2> Earnings were inadequate to cover fixed charges for the three months
ended August 31, 1994 by $12,768,000 and for the years ended May 31,
1994, 1993, 1992 and 1990 by $45,070,000, $157,724,000, $103,138,000 and
$62,825,000, respectively.
<F3> Earnings reflect nonrecurring writedowns and loss provisions of $984,000
and $12,262,000 for the three months ended August 31, 1994 and 1993,
respectively, and for the years ended May 31, 1994, 1993, 1992, 1991 and
1990 of $45,754,000, $110,695,000, $67,178,000, $7,930,000 and
$38,210,000, respectively. Nonrecurring gains from the sales of assets
aggregated $52,051,000 for the three months ended August 31, 1993 and
for the years ended May 31, 1994 and 1991 aggregated $56,193,000 and
$28,351,000, respectively. The ratio of earnings to fixed charges if
adjusted to remove nonrecurring items, would have been 0.5 in 1991 and
0.3 in 1990. Without nonrecurring items, earnings would have been
inadequate to cover fixed charges for the three months ended August 31,
1994 and 1993 by $11,784,000 and $8,719,000, respectively, and for the
years ended May 31, 1994, 1993, 1992, 1991 and 1990 by $55,509,000,
$47,029,000, $35,960,000, $14,723,000 and $24,615,000, respectively.
</TABLE>
Exhibit 12.2
TRITON ENERGY CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends
(Thousands, except ratios)
<TABLE>
<CAPTION>
Three months ended
August 31, Years ended May 31,
--------------------- ------------------------------------------------------------
1994 1993 1994 1993 1992 1991 1990
--------- --------- --------- ----------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined <F1>:
Interest charges . . . . . . . . . . . $ 8,713 $ 5,889 $ 26,951 $ 16,336 $ 11,066 $28,056 $ 33,181
Preferred dividend requirements of the
Company . . . . . . . . . . . . . . . -- -- -- -- 1,386 5,546 5,398
Preferred dividend requirements of
subsidiaries adjusted to pre-tax
basis . . . . . . . . . . . . . . . . -- 364 364 1,551 1,780 2,330 2,498
------- ------- -------- --------- -------- ------- --------
Total fixed charges . . . . . . . . 8,713 6,253 27,315 17,887 14,232 35,932 41,077
======= ======= ======== ========= ======== ======= ========
Earnings as defined <F1><F3>:
Earnings (loss) from continuing
operations before income taxes,
minority interest, extraordinary
item and cumulative effect of
accounting change . . . . . . . . . (6,682) 33,748 (27,198) (152,778) (97,387) 16,511 (52,901)
Fixed charges, above . . . . . . . . . 8,713 6,253 27,315 17,887 14,232 35,932 41,077
Less interest capitalized . . . . . . (5,438) (1,952) (16,863) (6,407) (6,529) (5,879) (7,180)
Plus undistributed (earnings) loss of
affiliates . . . . . . . . . . . . . (648) (362) (645) 3,012 2,558 (2,604) (246)
Less preferred dividend requirements
of the Company and its subsidiaries
adjusted to pre-tax basis . . . . . -- (364) (364) (1,551) (3,166) (7,876) (7,896)
------- ------- -------- --------- -------- ------- --------
$(4,055) $37,323 $(17,755) $(139,837) $(90,292) $36,084 $(27,146)
------- ------- -------- --------- -------- ------- --------
Ratio of earnings to fixed
charges <F2><F3> . . . . . . . . . . . -- 6.0 -- -- -- 1.0 --
======= ======= ======== ========= ======== ======= ========
<PAGE>
____________________
<FN>
<F1> Earnings include the Company's equity in the losses of an affiliate
whose debt is guaranteed by the Company. Related interest charges for
the years ended May 31, 1992, 1991 and 1990 of $819,000, $802,000 and
$240,000, respectively, were excluded from fixed charges due to the
improbability that such guarantees would be honored.
<F2> Earnings were inadequate to cover fixed charges and preferred dividends
for the three months ended August 31, 1994 by $12,768,000 and for the
years ended May 31, 1994, 1993, 1992 and 1990 by $45,070,000,
$157,724,000, $104,524,000 and $68,223,000, respectively.
<F3> Earnings reflect nonrecurring writedowns and loss provisions of $984,000
and $12,262,000 for the three months ended August 31, 1994 and 1993,
respectively, and for the years ended May 31, 1994, 1993, 1992, 1991 and
1990 of $45,754,000, $110,695,000, $67,178,000, $7,930,000 and
$38,210,000, respectively. Nonrecurring gains from the sales of assets
aggregated $52,051,000 for the three months ended August 31, 1993 and
for the years ended May 31, 1994 and 1991 aggregated $56,193,000 and
$28,351,000, respectively. The ratio of earnings to fixed charges and
preferred dividends if adjusted to remove nonrecurring items would have
been 0.4 in 1991 and 0.3 in 1990. Without nonrecurring items, earnings
would have been inadequate to cover fixed charges and preferred
dividends for the three months ended August 31, 1994 and 1993 by
$11,784,000 and $8,719,000, respectively, and for the years ended
May 31, 1994, 1993, 1992, 1991 and 1990 by $55,509,000, $47,029,000,
$37,346,000, $20,269,000 and $30,013,000, respectively.
</TABLE>
EXHIBIT 15.1
October 17, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Triton Energy Corporation has included our report dated
October 3, 1994 (issued pursuant to the provisions of Statement on Auditing
Standards No. 71) in the Prospectus constituting part of its Registration
Statement on Form S-3 to be filed on or about October 18, 1994. We are also
aware of our responsibilities under the Securities Act of 1933.
Yours very truly,
PRICE WATERHOUSE LLP
Dallas, Texas
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3 of
our report dated July 19, 1994 appearing on page F-2 of Triton Energy
Corporation's Annual Report on Form 10-K for the year ended May 31, 1994.
We also consent to the reference to us under the heading "Experts" in
such Prospectus.
PRICE WATERHOUSE LLP
Dallas, Texas
October 17, 1994
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3
of our report dated August 14, 1992 appearing on page F-3 of Triton
Energy Corporation's Annual Report on Form 10-K for the year ended
May 31, 1994. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
KPMG Peat Marwick LLP
Dallas, Texas
October 17, 1994
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated August 14, 1992 appearing on page F-53 of Triton Energy Corporation's
Annual Report on Form 10-K for the year ended May 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
KPMG Peat Marwick
Brisbane, Australia
October 17, 1994
EXHIBIT 23.5
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
October 17, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
Gentlemen:
We hereby consent to (i) the incorporation by reference from Triton
Energy Corporation's (the Company) Annual Report on Form 10-K for the fiscal
year ended May 31, 1994, and inclusion in the Company's Registration Statement
on Form S-3 (the Form S-3) relating to an offering of the Company's Securities
of certain data from our report dated July 11, 1994, entitled "Appraisal Report
on Certain Properties in Columbia owned by Triton Colombia Incorporated as of
May 31, 1994-SEC Case" and (ii) the specific references to our firm in
"Experts" in Form 10-K and Form S-3.
Very truly yours,
DeGOLYER and MacNAUGHTON
EXHIBIT 23.6
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
October 17, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
RE: Consent of Independent Petroleum Engineers
Dear Gentlemen:
We hereby consent to the incorporation by reference from Triton Energy
Corporation's (the "Company") Annual Report on Form 10-K for the fiscal year
ended May 31, 1994, and inclusion in the Company's Registration Statement on
Form S-3 (the "Form S-3") relating to an offering of the Company's securities,
of the estimates of the net proved reserves and future net cash inflows of the
Company prepared by our firm and our related calculations. We also hereby
consent to the specific references to our firm as "experts".
Sincerely,
McDANIEL & ASSOCIATES CONSULTANTS LTD.
/s/ B.H. Emslie
B.H. Emslie, Vice President
Calgary, Alberta, Canada
Dated: October 17, 1994
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Triton Energy Corporation
(Exact name of obligor as specified in its charter)
Texas 75-1151855
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject. New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
and Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-46892, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 17 day of October, 1994.
CHEMICAL BANK
By /s/G. McFarlane
G. McFarlane
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1994, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . . . . $ 7,253
Interest-bearing balances . . . . . . . . . . . . . . . . . . . 4,282
Securities:
Held to maturity securities . . . . . . . . . . . . . . . . . . . . . 6,841
Available for sale securities . . . . . . . . . . . . . . . . . . . . 14,520
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . 2,011
Securities purchased under agreements to resell . . . . . . . . 144
Loans and lease financing receivables:
Loans and leases, net of unearned income $61,454
Less: Allowance for loan and lease losses 2,026
Less: Allocated transfer risk reserve . . . . 115
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . . . . 59,313
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . 28,005
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,334
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . 553
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . . . . . . . 127
Customer's liability to this bank on acceptance
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 1,181
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,063
________
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 133,191
========
<PAGE>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . . . . $ 48,229
Noninterest-bearing . . . . . . . . . . . . . . . . . . . $17,236
Interest-bearing . . . . . . . . . . . . . . . . . . . . . 30,993
______
In foreign offices, Edge and Agreement subsidiaries,
and IBF's . . . . . . . . . . . . . . . . . . . . . . . . 25,005
Noninterest-bearing . . . . . . . . . . . . . . . . . . $ 221
Interest-bearing . . . . . . . . . . . . . . . . . . . . . 24,784
______
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased . . . . . . . . . . . . . . . . . . . . 9,286
Securities sold under agreements to repurchase . . . . . . . . . 2,476
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . 2,000
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 19,206
Other Borrowed money:
With original maturity of one year or less . . . . . . . . . . . 7,868
with original maturity of more than one year . . . . . . . . . . 1,033
Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Bank's liability on acceptances executed and outstanding . . . . . . 1,184
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . 3,500
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 5,893
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 125,699
_______
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . . . . . . . . . . . . 2,668
Net unrealized holding gains (Losses)
on available-for-sale securities . . . . . . . . . . . . . . . . . . (295)
Cumulative foreign currency translation adjustments . . . . . . . . . (2)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . 7,492
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . $ 133,191
=======
<PAGE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Exhibit 25.2
______________________
FORM T-1
______________________
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
______________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)________
______________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5459866
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036
New York, New York (Zip Code)
(Address of principal
executive offices)
Triton Energy Corporation
(Exact name of obligor as specified in its charter)
Texas 75-1151855
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
6688 North Central Expressway 75206-9926
Suite 1400 (Zip Code)
Dallas, Texas
(Address of principal executive offices)
______________________
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Reserve Bank of New York (2nd District), New York, New
York (Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
3, 4, 5, 6, 7, 8 ,9, 10, 11, 12, 13, 14, and 15.
Triton Energy Corporation currently is not in default under any of its
outstanding securities under which the applicant is Trustee. Accordingly,
responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form
T-1 are not required under General Instruction B.
16. List of Exhibits.
T-1.1 - "Chapter 204, Laws of 1853, An Act to Incorporate the
United States Trust Company of New York, as Amended", is
incorporated by reference to Exhibit T-1.1 to form T-1
filed on September 20, 1991 with the Securities and
Exchange Commission (the "Commission") pursuant to the
Trust Indenture Act of 1939 (Registration No. 2221291).
T-1.2 - The trustee was organized by a special act of the New York
Legislature in 1853 prior to the time that the New York
Banking Law was revised to require a Certificate of
authority to commence business. Accordingly, under New
York Banking Law, the Charter (Exhibit T-1.1) constitutes
an equivalent of a certificate of authority to commence
business.
T-1.3 - The authorization of the trustee to exercise corporate
trust powers is contained in the Charter (Exhibit T-1.1).
T-1.4 - The By-laws of the United States Trust Company of New York,
as amended to date, are incorporated by reference to
Exhibit T-1.4 to Form T-1 filed on September 20, 1991 with
<PAGE>
the Commission pursuant to the Trust Indenture Act of 1939
(Registration No. 2221291).
T-1.6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939.
T-1.7 - A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
NOTE
As of October 17, 1994 the trustee has 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States
Trust Company of New York and its parent company, U.S. Trust Corporation.
In answering Item 2 in this statement of eligibility and qualification, as to
matters peculiarly within the knowledge of the obligor or its directors, the
trustee has relied upon information furnished to it by the obligor and will
rely on information to be furnished by the obligor and the trustee disclaims
responsibility for the accuracy or completeness of such information.
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York
on the 17th day of October, 1994.
United States Trust Company of
New York, Trustee
By: /s/ John C. Stohlmann
John C. Stohlmann
Authorized Signatory
<PAGE>
Exhibit T-1.6
The consent of the trustee required by Section 321(b)
of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
March 31, 1992
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Gerard F. Garey
Gerard F. Garey
Senior Vice President
<PAGE>
Reprinted from
American Banker, August 16, 1994
Consolidated Report of Condition of
United States Trust Company of New York
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System,
at the close of business June 30, 1994, published in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
----------------
(In Thousands)
<S> <C>
ASSETS
Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin . . $ 290,519
b. Interest-bearing balances . . . . . . . . . . . . . . 50,000
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . 450,023
Available-for-sale securities . . . . . . . . . . . . . . 1,002,242
Federal funds sold and securities purchased under
agreements to resell in domestic offices of
the bank and of its Edge and Agreement subsidiaries,
and in IBFs: 0
a. Federal funds sold . . . . . . . . . . . . . . . . . . 5,000
b. Securities purchased under agreements to resell . . . 0
Loans and loans financing receivables:
a. Loans and leases, net of unearned income . . . . . . 1,456,949
b. LESS: Allowance for loan and lease losses . . . . . . 12,399
c. LESS: Allowance transfer tax reserves . . . . . . . . 0
d. Loans and leases, net of unearned income,
allowance and reserve 1,444,550
Assets held in trading accounts . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . 97,105
Other real estate owned . . . . . . . . . . . . . . . . . . 10,865
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . . . . 957
Customers' Liability to this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . 1,465
Other assets . . . . . . . . . . . . . . . . . . . . . . . . 113,680
----------
Total Assets . . . . . . . . . . . . . . . . . . . . . . . $3,466,386
==========
LIABILITIES
Deposits:
a. In domestic offices . . . . . . . . . . . . . . . . . . . 2,161,830
(1) Noninterest bearing . . . . . . . . . . . . . . . . . . 1,098,376
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . 1,063,454
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . 7,636
(1) NonInterest bearing . . . . . . . . . . . . . . . . . . 0
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . 7,636
<PAGE>
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . 933,170
b. Securities sold under agreements to repurchase . . . . . . 3,672
Demand notes issued to the U.S. Treasury . . . . . . . . . . . 0
Trading Liabilities . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money:
With original maturity of one year or less . . . . . . . . . 73,049
With original maturity of more than one year . . . . . . . . 0
Mortgage Indebtedness and obligations under capitalized leases 1,639
Bank's Liability on acceptances executed and outstanding . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . 12,453
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . 81,856
----------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . 3,275,305
Limited-Life preferred stock and related surplus . . . . . . . 0
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . 14,995
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,500
Undivided profits and capital reserve . . . . . . . . . . . . . 138,377
Net unrealized holding gains (losses) on
available-for-sale securities . . . . . . . . . . . (3,791)
Cumulative foreign currency translation adjustments . . . . . . 0
----------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . 191,081
----------
TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . . . . . $3,486,386
==========
</TABLE>
I, DANIEL M. CLAVIN, SENIOR VICE PRESIDENT of the above-named
bank do hereby declare that this report of condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Daniel M. Clavin, SVP
July 28, 1994
We, the undersigned trustees, attest the correctness of this
Report of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true and correct.
H. MARSHALL SCHWARZ, Trustee
JEFFREY B. MAURER, Trustee
FREDERICK S. WONHAM, Trustee
