As filed with the Securities and Exchange Commission on September 9, 1996
Registration No. 333-_____, 333-______
- ---------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________
TRITON ENERGY LIMITED TRITON ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Cayman Islands Delaware
(State or other jurisdiction of incorporation)
None 75-1151855
(I.R.S. Employer Identification No.)
1311
(Primary Standard Industrial Classification Code Number)
Caledonian House, 6688 North Central Expressway
Mary Street, P.O. Box 1043 Suite 1400
George Town Dallas, Texas 75206-9926
Grand Cayman, Cayman Islands (214) 691-5200
(809) 949-0050
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_________________________
Robert B. Holland, III, Esq.
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(214) 691-5200
<PAGE>
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________
Copies to:
Vincent Pagano, Jr., Esq. David J. Graham, Esq.
Simpson Thacher & Bartlett Andrews & Kurth L.L.P.
425 Lexington Avenue 4200 Texas Commerce Tower
New York, New York 10017-3909 Houston, Texas 77002
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/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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 price registration fee
--------------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C> <C>
Debt Securities, Ordinary Shares,
Preference Shares, Warrants<F1> . . . . $200,000,000<F2> 100%<F3> $200,000,000<F2><F3> $68,966<F4>
Guarantees of Triton Energy Limited of
Debt Securities and Warrants of Triton
Energy Corporation . . . . . . . . . . <F5> <F5> <F5> None
<FN>
<F1> The Debt Securities registered hereby include 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 $200,000,000. The Ordinary Shares registered hereby
include Preference Share Purchase Rights (the "Rights"). The Rights are
associated with and trade with the Ordinary Shares. The value, if any,
attributable to the Rights is reflected in the market price of the
Ordinary Shares. There are also being registered hereunder an
indeterminate number of Ordinary Shares as shall be issuable upon
conversion or redemption of Preference Shares or Debt Securities
registered hereby.
<F2> In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$200,000,000. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
<F3> Estimated solely for the purpose of calculating the registration fee.
<F4> Calculated pursuant to Section 6(b).
<F5> No separate consideration will be received for the Guarantees.
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus herein also relates to the $127,799,200 of Common Stock, Preferred
Stock, Debt Securities and Warrants registered on Form S-3 (Registration No.
33-55347) of Triton Energy Corporation and $172,200,800 of Debt Securities
registered on Form S-3 (Registration No. 33-69230) of Triton Energy
Corporation. This Registration Statement also constitutes Post-Effective
Amendment No. 2 to Registration Statement No. 33-55347 and Post-Effective
Amendment No. 3 to Registration Statement No. 33-69230, and upon the
effectiveness of such Post-Effective Amendments, this Registration Statement
and Registration Statement No. 33-55347 and No. 33-69230 will relate to an
aggregate of $300,000,000 of Debt Securities of Triton Energy Corporation
guaranteed by Triton Energy Limited and Warrants guaranteed by Triton Energy
<PAGE>
Limited to purchase such Debt Securities and an aggregate of $200,000,000 of
Ordinary Shares, Preference Shares, Warrants to purchase Ordinary Shares and
Preference Shares, Debt Securities and Warrants to purchase Debt Securities of
Triton Energy Limited.
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
EXPLANATORY NOTE
This Registration Statement consists of two separate Prospectuses, covering
registration of:
(1) (A) Debt Securities, Ordinary Shares, Preference Shares and Warrants of
Triton Energy Limited, (B) Debt Securities and Warrants of Triton Energy
Corporation and (C) Guarantees of Triton Energy Limited of Debt Securities and
Warrants of Triton Energy Corporation;
(2) Ordinary Shares to be issued pursuant to the Dividend Reinvestment and
Stock Purchase Plan of Triton Energy Limited.
<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 September 9, 1996
PROSPECTUS
Triton Energy Limited
Preference Shares
Ordinary Shares
Warrants to Purchase Preference Shares
Warrants to Purchase Ordinary Shares
Debt Securities
Warrants to Purchase Debt Securities
Triton Energy Corporation
Guaranteed Debt Securities
Guaranteed Warrants to Purchase Debt Securities
_________________________
Triton Energy Limited ("TEL" or the "Company") may offer and sell from
time to time, in one or more series, (i) its preference shares, par value $.01
per share (the "Preference Shares"), (ii) its Ordinary Shares, par value $.01
per share (the "Ordinary Shares"), (iii) unsecured debt securities consisting
of notes, debentures or other evidences of indebtedness (the "TEL Debt
Securities") which may be senior ("TEL Senior Debt Securities"), senior
subordinated ("TEL Senior Subordinated Debt Securities") or subordinated ("TEL
Subordinated Debt Securities"),and (iv) warrants to purchase Preference Shares,
Ordinary Shares or TEL Debt Securities (the "TEL Warrants"), or any combination
of the foregoing.
Triton Energy Corporation, a wholly owned subsidiary of TEL ("TEC"), 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 "TEC Debt Securities", and together with the TEL Debt Securities, the
"Debt Securities") which may be senior ("TEC Senior Debt Securities", and
together with the TEL Senior Debt Securities, the "Senior Debt Securities") or
senior subordinated ("TEC Senior Subordinated Debt Securities", and together
with the TEL Senior Subordinated Debt Securities, the "Senior Subordinated Debt
Securities") and which will be fully and unconditionally guaranteed by TEL (the
"Debt Guarantee") and (ii) warrants, which will be fully and unconditionally
guaranteed by TEL (the "Warrant Guarantee" and, together with the Debt
Guarantee, the "Guarantee") to purchase TEC Debt Securities (the "TEC Warrants"
and, together with the TEL Warrants, the "Warrants"), or any combination of the
foregoing.
<PAGE>
The Preference Shares, Ordinary Shares, Debt Securities, Guarantee and
Warrants are collectively referred to as the "Securities". The Preference
Shares, Ordinary Shares, TEL Debt Securities and TEL Warrants may be offered at
an aggregate initial offering price not to exceed $200,000,000 and the TEC Debt
Securities and TEC Warrants may be offered at an aggregate initial offering
price not to exceed $300,000,000, in each case 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 TEL or TEC, as the
case may be, 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 Preference Shares, 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 from which dividends shall accrue,
any redemption or sinking fund provisions, any conversion or exchange rights,
(iii) in the case of Ordinary Shares, the number of Ordinary Shares 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 TEL or TEC to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of TEL or TEC 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.
For a discussion of certain risk factors that should be considered by
prospective investors, see "Risk Factors," beginning on page 4.
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 , 1996.
<PAGE>
AVAILABLE INFORMATION
TEL 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 TEL 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 the web site
(http://www.sec.gov.) maintained by the Commission; and at regional offices of
the Commission at the Citicorp 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, as amended (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) TEC 's Annual Report on Form 10-K for the year ended December
31, 1995, (ii) TEC 's Current Report on Form 8-K dated February 9, 1996, (iii)
TEL's Current Reports on Form 8-K dated May 20, 1996, July 2, 1996 and
September 9, 1996, (iv) TEL's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996, and (v) the description of the Ordinary
Shares contained in TEL's Registration Statement on Form 8-A, dated March 25,
1996, as amended by Form 8-A/A, dated August 14, 1996.
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
<PAGE>
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
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, 6688 North Central Expressway,
Suite 1400, Dallas, Texas 75206-9926, telephone (214) 691-5200.
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS
The Company is a Cayman Islands company, certain of its officers and
directors may be residents of various jurisdictions outside the United States
and its Cayman Islands counsel, W.S. Walker & Company, are residents of the
Cayman Islands. All or a substantial portion of the assets of TEL and of such
persons may be located outside the United States. As a result, it may be
difficult for investors to effect service of process within the United States
upon such persons or to enforce in United States courts judgments obtained
against such persons in United States courts and predicated upon the civil
liability provisions of the Securities Act. Notwithstanding the foregoing, TEL
has irrevocably agreed that it may be served with process with respect to
actions based on offers and sales of securities made hereby in the United
States by serving Robert B. Holland, III, c/o Triton Energy Corporation, 6688
North Central Expressway, Suite 1400, Dallas, Texas 75206-9926, TEL's United
States agent appointed for that purpose. TEL has been advised by its Cayman
Islands counsel, W.S. Walker & Company, that there is doubt as to whether
Cayman Islands courts would enforce (a) judgments of United States courts
obtained in actions against such persons or TEL that are predicated upon the
civil liability provisions of the Securities Act or (b) in original actions
brought against TEL or such persons predicated upon the Securities Act. There
is no treaty in effect between the United States and the Cayman Islands
providing for such enforcement, and there are grounds upon which Cayman Islands
courts may not enforce judgments of United States courts. Certain remedies
available under the United States federal securities laws would not be allowed
in Cayman Islands courts as contrary to that nation's policy.
<PAGE>
THE COMPANY
The Company is an international oil and gas exploration company primarily
engaged in exploration and production through subsidiaries and affiliates. The
Company's principal properties and operations are located in Colombia and
Malaysia-Thailand. The Company also has oil and gas interests in other Latin
American, European and Asian countries.
TEL was formed in the Cayman Islands in 1995 and became the parent holding
company of TEC through the merger (the "Merger") of a subsidiary of TEL with
and into TEC . The Merger was consummated on March 25, 1996. In connection with
the Merger, each share of common stock, par value $1.00 per share, of TEC , was
converted into one Ordinary Share. TEL's principal executive offices are
located at Caledonian House, Mary Street, P.O. Box 1043, George Town, Grand
Cayman, Cayman Islands and its telephone number is (809) 949-0050.
TEC was incorporated in Delaware in 1995 and is the successor by merger
to Triton Energy Corporation, a Texas corporation, incorporated in 1962. TEC 's
principal executive offices are located at 6688 North Central Expressway, Suite
1400, Dallas, Texas 75206-9926 and its telephone number is (214) 691-5200. The
"Company" refers collectively to TEL and its consolidated subsidiaries,
including TEC.
RISK FACTORS
Certain statements included or incorporated by reference in this
Prospectus, such as proven oil and gas reserves, are forward-looking statements
(as such term is used in the Private Securities Litigation Reform Act of 1995),
and the factors discussed hereunder could cause actual results and developments
to be materially different from those expressed in or implied by such
statements. Accordingly, 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 Company's strategy is to focus its
exploration activities on what the Company believes are relatively high
potential prospects. No assurance can be given that these prospects contain
significant oil and gas reserves or that the Company will be successful in its
exploration activities thereon. The Company follows the full cost method of
accounting for exploration and development of oil and gas reserves whereby all
productive and nonproductive costs are capitalized. Costs related to
acquisition, holding and initial exploration of concessions in countries with
no proved reserves are initially capitalized, including internal costs directly
identified with acquisition, exploration and development activities. The
Company's exploration concessions are periodically assessed for impairment on a
country by country basis. If the Company's investment in exploration
concessions within a country where no proved reserves are assigned is deemed to
be impaired, the concessions are written down to estimated recoverable value.
<PAGE>
If the Company abandons all exploration efforts in a country where no proved
reserves are assigned, all exploration costs associated with the country are
expensed. The Company's assessments of whether its investment within a country
is impaired and whether exploration activities within a country will be
abandoned are made from time to time based on its review and assessment of
drilling results, seismic data and other information it deems relevant. Due to
the unpredictable nature of exploration drilling activities, the amount and
timing of impairment expense are difficult to predict with any certainty.
Financial information concerning the Company's assets, including capitalized
costs by geographic area, is set forth in Note 21 of Notes to Consolidated
Financial Statements in TEC 's Annual Report on Form 10-K for the year ended
December 31, 1995.
The markets for oil and natural gas historically have been volatile and
are likely to continue to be volatile in the future. Oil and natural gas prices
have been subject to significant fluctuations during the past several decades
in response to relatively minor changes in the supply of and demand for oil and
natural gas, market uncertainty and a variety of additional factors that are
beyond the control of the Company. These factors include the level of consumer
product demand, weather conditions, domestic and foreign government
regulations, political conditions in the Middle East and other production
areas, the foreign supply of oil and natural gas, the price and availability of
alternative fuels, and overall economic conditions. It is impossible to predict
future oil and gas price movements with any certainty.
The Company's oil and gas business is also subject to all of the operating
risks normally associated with the exploration for and production of oil and
gas, including, without limitation, blowouts, cratering, pollution,
earthquakes, labor disruptions and fires, each of which could result in
substantial losses to the Company due to injury or loss of life and damage to
or destruction of oil and gas wells, formations, production facilities or other
properties. In accordance with customary industry practices, the Company
maintains insurance coverage limiting financial loss resulting from certain of
these operating hazards. Losses and liabilities arising from uninsured or
underinsured events would reduce revenues and increase costs to the Company.
There can be no assurance that any insurance will be adequate to cover losses
or liabilities. The Company cannot predict the continued availability of
insurance, or its availability at premium levels that justify its purchase.
The Company's oil and gas business is also subject to laws, rules and
regulations in the countries in which the Company operates, which generally
pertain to production control, taxation, environmental and pricing concerns and
other matters relating to the petroleum industry. Many jurisdictions have at
various times imposed limitations on the production of oil and natural gas by
restricting the rate of flow for oil and natural gas wells below their actual
capacity. There can be no assurance that present or future regulation will not
adversely affect the operations of the Company.
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 was the operator or owner of a majority interest. Any
inability of the Company to meet its obligations in these and other contract
<PAGE>
areas could have a material adverse effect on its interests in these contract
areas.
Financial Position. The Company reported income from continuing operations of
$24 million for the six months ended June 30, 1996 and $6.5 million for the
year ended December 31, 1995, but losses from continuing operations in the
seven month transition period ended December 31, 1994 and in each of the last
four fiscal years in the period ended May 31, 1994. To date, working capital
(amounting to $30.3 million as of June 30, 1996), external sources of funding,
asset sales and net cash flow from operations have been sufficient to service
the Company's existing debt obligations and capital spending programs. The
Company expects to pursue external financing alternatives and may from time to
time consider dispositions 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, Malaysia-Thailand 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 Company's credit facility as well as covenants in the indenture pursuant
to which $240 million principal amount of TEC 's 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 TEC 's 9 3/4%
Senior Subordinated Discount Notes due 2000 (the "2000 Notes") were issued in
1993.
For information regarding the Company's financial position and results of
operations, including the amounts of previous losses, the Company's net working
capital from time to time, and the Company's ratios of earnings to fixed
charges and earnings to combined fixed charges and preference dividends, see
"Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preference Dividends" herein and TEC 's Consolidated Statements of Operations,
Consolidated Balance Sheets and Consolidated Statements of Cash Flows in TEC 's
Annual Report on Form 10-K and other documents incorporated herein by
reference, including "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in TEC 's Annual Report on Form
10-K for the year ended December 31, 1995 and in TEL's Quarterly Report on Form
10-Q for the quarter ended June 30, 1996.
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
regulations will not, in the future, adversely affect the Company's
consolidated results of operations, cash flows or financial position. Pollution
and similar environmental risks generally are not fully insurable.
<PAGE>
Risks of International Operations. The Company derives substantially all of its
consolidated revenues from international operations. Risks inherent in
international operations include loss of revenue, property and equipment from
such hazards as expropriation, nationalization, war, insurrection and other
political risks; trade protection measures; risks of increases in taxes and
governmental royalties; and renegotiation of contracts with governmental
entities; as well as changes in laws and policies governing operations of other
companies. Other risks inherent in international operations are the possibility
of realizing economic currency exchange losses when transactions are completed
in currencies other than United States dollars and the Company's ability to
freely repatriate its earnings under existing exchange control laws.
Certain Factors Relating to Colombia. The Company is a participant in
significant oil and gas discoveries located in the Llanos Basin in the
foothills of the Andes Mountains, approximately 160 kilometers (100 miles)
northeast of Bogota, Colombia. The Company owns interests in three contiguous
areas known as the Santiago de las Atalayas ("SDLA"), Tauramena and Rio
Chitamena contract areas. Well results to date indicate that significant oil
and gas deposits lie across the SDLA, Tauramena and Rio Chitamena contract
areas (the "Cusiana Field"), and within the SDLA contract area (the "Cupiagua
Field").
Largely due to complex geology, drilling of wells in the Cusiana and
Cupiagua fields has been comparatively difficult, lengthy in duration and
expensive. The Company believes that considerable progress has been achieved in
reducing the time and expenditures required to drill and complete wells in the
Cusiana and Cupiagua fields based on experience gained from initial wells
drilled. Although there can be no assurance, the Company believes that the
experience gained in the area to date will allow the operator to continue to
reduce the time and expenditures required to drill and complete wells in the
area. However, because the Company is not the operator of these contract areas,
the Company does not control the timing or manner of these operations.
Full development of reserves in the Cusiana and Cupiagua fields will take
more than one year and require additional drilling and extensive production
facilities, which in turn will require significant additional capital
expenditures, the ultimate amount of which cannot be predicted. Pipelines
connect the major producing fields in Colombia to export facilities and to
refineries. These pipelines are in the process of being upgraded and expanded
to accommodate production from the Cusiana and Cupiagua fields.
Guerilla activity in Colombia has from time to time disrupted the
operation of oil and gas projects and increased costs. Although the Colombian
government, the Company and its partners have taken steps to improve security
and improve relations with the local population, there can be no assurance that
attempts to reduce or prevent guerrilla activity will be successful or that
such activity will not disrupt operations in the future.
Numerous Colombian government officials, including the President of
Colombia, are the subjects of investigations and allegations that claim they
have accepted illegal campaign contributions. These circumstances have led to
speculation as to whether these officials will remain in office. The President
of Colombia has stated that any such illicit contributions were made without
<PAGE>
his knowledge. In response to the allegations, the leadership of the opposition
Conservative Party withdrew its support of the Government and certain cabinet
ministers and ambassadors and a high ranking military officer resigned. Any
changes in the holders of significant government offices could have adverse
consequences on the Company's relationship with the Colombian national oil
company and the Colombian government's ability to control guerilla activities,
and could exacerbate the factors relating to foreign operations discussed
above. Colombia is also among 31 nations whose progress in stemming the
production and transit of illegal drugs is subject to annual certification by
the President of the United States. In March 1996, the President of the United
States announced that Colombia would neither be certified nor granted a
national interest waiver. The consequences of the failure to receive
certification generally include the following: all bilateral aid, except anti-
narcotics and humanitarian aid, has been or will be suspended; the Export-
Import Bank of the United States ("EXIM") and the Overseas Private Investment
Corporation will not approve financing for new projects in Colombia, although
currently approved EXIM financings are not expected to be affected; U.S.
representatives at multilateral lending institutions will be required to vote
against all loan requests from Colombia, although such votes will not
constitute vetoes; and the President of the United States and Congress retain
the right to apply future trade sanctions. Each of these consequences of the
failure to receive such certification could result in adverse economic
consequences in Colombia and could further heighten the political and economic
risks associated with the Company's operations in Colombia.
Certain Factors Relating to Malaysia-Thailand. The Company is a partner in a
significant gas exploration project located in the upper Malay Basin in the
Gulf of Thailand approximately 450 kilometers northeast of Kuala Lumpur and 750
kilometers south of Bangkok. The Company is a contractor under a production
sharing contract covering Block A-18 of the Malaysia-Thailand Joint Development
Area. Test results for the initial exploratory wells indicate that significant
gas deposits lie under the block.
Development of gas production is in the early planning stages but is
expected to take several years and require the drilling of additional wells and
the installation of production facilities, which will require significant
additional capital expenditures, the ultimate amount of which cannot be
predicted. Pipelines will also be required to be connected between Block A-18
and ultimate markets. The terms on which any gas produced from the Company's
contract area in Malaysia-Thailand may be sold may be adversely affected by the
present monopoly gas purchase and transportation conditions in both Thailand
and Malaysia, including the Thai national oil company's monopoly in
transportation within Thailand and its territorial waters.
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
<PAGE>
principally to continue funding the Company's obligations relating to the
development of its operations in Colombia and Malaysia-Thailand.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS
For purposes of computing the ratios of earnings to fixed charges and
earnings to combined fixed charges and preference dividends, earnings consist
of earnings (loss) from continuing operations before income taxes, minority
interest, extraordinary items and cumulative effect of accounting changes,
plus fixed charges (interest charges and preference share dividend requirements
of subsidiaries, adjusted to a pretax basis), less interest capitalized, less
preference share dividend requirements of subsidiaries adjusted to a pretax
basis and less undistributed earnings of affiliates whose debt is not
guaranteed by the Company.
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preference dividends for the Company for
the periods indicated:
<PAGE>
<TABLE>
<CAPTION>
Seven
Six Months Months
Ended Year Ended Ended
June 30, December 31, December 31, Years Ended May 31,
1996 1995 1995 1994 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed
charges . . . . . 1.7x 1.1x 1.1x <F1> <F1> <F1> <F1> 1.3x
Ratio of earnings
to combined
fixed charges
and preference
dividends . . . . 1.6x 1.1x 1.0x <F2> <F2> <F2> <F2> 1.1x
____________________
<FN>
<F1> Earnings were inadequate to cover fixed charges for the seven months
ended December 31, 1994 by $30,565,000 and for the years ended May 31,
1994, 1993 and 1992 by $40,976,000, $152,391,000 and $92,875,000,
respectively. Without nonrecurring items, earnings would have been
inadequate to cover fixed charges for the six months ended June 30, 1995
by $8,195,000, for the year ended December 31, 1995 by $9,921,000, the
seven months ended December 31, 1994 by $29,581,000 and for the years
ended May 31, 1994, 1993, 1992 and 1991 by $51,415,000, $45,183,000,
$32,301,000 and $11,906,000, respectively.
<F2> Earnings were inadequate to cover fixed charges and preference dividends
for the seven months ended December 31, 1994 by $31,014,000 and for the
years ended May 31, 1994, 1993 and 1992 by $40,976,000, $152,391,000 and
$94,261,000, respectively. Without nonrecurring items, earnings would
have been inadequate to cover fixed charges and preference dividends for
the six months ended June 30, 1995 by $8,644,000, for the year ended
December 31, 1995 by $10,723,000, for the seven months ended December
31, 1994 by $30,030,000, and for the years ended May 31, 1994, 1993,
1992 and 1991 by $51,415,000, $45,183,000, $33,687,000 and $17,452,000,
respectively.
</TABLE>
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The TEC Debt Securities will be unsecured senior or senior subordinated
debt of TEC and will be issued, in the case of TEC Senior Debt Securities,
under a Senior Indenture (the "TEC Senior Debt Indenture") among TEC, TEL, as
guarantor, and The Chase Manhattan Bank, as trustee, and in the case of TEC
Senior Subordinated Debt Securities, under a Senior Subordinated Indenture (the
"TEC Senior Subordinated Debt Indenture") among TEC, TEL, as guarantor, and
United States Trust Company of New York, as trustee. The TEC Senior Debt
Indenture and the TEC Senior Subordinated Debt Indenture are sometimes
hereinafter referred to individually as a "TEC Indenture" and collectively as
the "TEC Indentures." The TEL Debt Securities will be unsecured senior, senior
subordinated or subordinated debt of TEL and will be issued, in the case of TEL
Senior Debt Securities, under a Senior Indenture (the "TEL Senior Debt
Indenture") between TEL and The Chase Manhattan Bank, as trustee, in the case
of TEL Senior Subordinated Debt Securities, under a Senior Subordinated
Indenture (the "TEL Senior Subordinated Debt Indenture") between TEL and United
States Trust Company of New York, as trustee, and in the case of TEL
Subordinated Debt Securities, under a Subordinated Indenture (the "TEL
Subordinated Debt Indenture") between TEL and The Chase Manhattan Bank, as
Trustee. The TEL Senior Debt Indenture, the TEL Senior Subordinated Debt
Indenture and the TEL Subordinated Debt Indenture are sometimes hereinafter
referred to individually as a "TEL Indenture" and collectively as the "TEL
Indentures." The TEC Senior Indenture and the TEL Senior Indenture are
sometimes collectively referred to individually as a "Senior Debt Indenture"
and collectively as the "Senior Debt Indentures." The TEC Senior Subordinated
Debt Indenture and the TEL Senior Subordinated Debt Indenture are sometimes
referred to individually as a "Senior Subordinated Debt Indenture" and
collectively as the "Senior Subordinated Debt Indentures". The TEC Indentures
and the TEL Indentures are sometimes 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 and the Indentures
provide that the Debt Securities may be issued from time to time in one or more
series. The Indentures permit the appointment of a different trustee for each
series of Debt Securities. As used herein, the term "Trustee" means The Chase
Manhattan Bank or United States Trust Company of New York, 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 TEL and TEC believe 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
<PAGE>
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 the Guarantee and to subordination. For purposes of the summaries
set forth below, the term "Issuer" shall refer to TEC in the case of the TEC
Debt Securities and the TEC Indentures, and to TEL in the case of the TEL Debt
Securities and the TEL Indentures. The term "Obligors" shall refer to TEL, in
the case of the TEL Debt Securities and the TEL Indentures, and TEC and TEL,
as guarantor (the "Guarantor"), in the case of the TEC Debt Securities and
the TEC Indentures.
Provisions Applicable to Senior, Senior Subordinated and TEL Subordinated Debt
Securities
General. TEL Debt Securities will be unsecured senior, senior subordinated
or subordinated obligations of TEL, and TEC Debt Securities will be unsecured
senior or senior subordinated obligations of TEC, except that, under certain
circumstances, TEC may be released from such obligations. See "--Condition
for Release of TEC ." Except to the extent set forth in the applicable
Prospectus Supplement, none of the Indentures limits the payment of dividends
by or the acquisition of stock of TEL or TEC. 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 TEL or a highly leveraged transaction by TEL.
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 TEC Senior Debt Securities, TEC Senior Subordinated Debt Securities, TEL
Senior Debt Securities, TEL Senior Subordinated Debt Securities or TEL
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 Issuer 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,
<PAGE>
premium, if any, and interest, if any, on the 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) if a trustee other
than The Chase Manhattan Bank with respect to any series of Senior Debt
Securities or TEL Subordinated 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 Issuer 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
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.
Description of Guarantee. TEL will fully and unconditionally guarantee,
pursuant to the TEC Indentures, the due and prompt payment of the principal of
(and premium, if any) and interest on the TEC Debt Securities when and as the
same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise.
Payments with respect to the Guarantee of the TEC Senior Subordinated Debt
Securities will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness of the Guarantor to the same extent and manner
that payments with respect to the TEC Senior Subordinated Debt Securities are
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness of the Issuer as described under "Provisions Applicable Solely to
Senior Subordinated Debt Securities and TEL Subordinated Debt Securities"
below.
<PAGE>
TEL will also agree that, if any deduction or withholding of any present
or future withholding taxes, levies, imposts or charges whatsoever imposed by
or for the account of the Cayman Islands or any political subdivision or taxing
authority thereof or therein shall be required, TEL will (subject to compliance
by the holders of the TEC Debt Securities with any relevant administrative
requirements) pay such additional amount in respect of principal (and premium,
if any) and interest as may be necessary in order that the net amounts paid to
such holders pursuant to the Guarantee after such deduction or withholding
shall equal the respective amounts of principal (and premium, if any) and
interest specified in the TEC Debt Securities; provided, however, that the
foregoing shall not apply to any such tax, levy, impost or charge which would
not be payable but for the fact that (i) the holder of the TEC Debt Securities
is a domiciliary, national or resident of, or engaging in business or
maintaining a permanent establishment or being physically present in, the
Cayman Islands or such political subdivision or otherwise having some
connection with the Cayman Islands other than the holding or ownership of such
TEC Debt Security or the collection of principal of (and premium, if any) and
interest on such TEC Debt Security or the enforcement of such TEC Debt Security
or of the Guarantee endorsed thereon or (ii) where presentation is required,
such TEC Debt Security was presented more than 30 days after the date such
payment became due or was provided for, whichever is later.
In the opinion of W.S. Walker & Company, under Cayman Islands law as
applied and interpreted on the date of this Prospectus no taxes, levies,
imposts or charges of the Cayman Islands or any political subdivisions or
taxing authority therefor therein would be required to be deducted or withheld
from any payment by TEL to a resident of the U.S. (who is not also a resident
of the Cayman Islands) pursuant to a guarantee in the form provided for by the
TEC Indentures.
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. TEL and TEC anticipate 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
<PAGE>
dealers, underwriters or agents with respect to such Debt Securities or by the
Issuer if such Debt Securities are offered and sold directly by the Issuer.
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
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. TEL and TEC expect 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 Securities as shown on the records of such Depositary or its nominee.
TEL and TEC also expect 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 TEL, TEC, 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 an Issuer within 90 days, such Issuer will issue
individual Debt Securities of such series in exchange for the Global Security
<PAGE>
representing such series of Debt Securities. In addition, an Issuer 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 an
Issuer 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 such Issuer, 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 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
any of the Obligors applicable to Debt Securities of such series, continued for
90 days after written notice to the Obligors by the Trustee or to the Obligors
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 of any
of the Obligors; and (f) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by any of the Obligors 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 any of
the Obligors 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
$20,000,000 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
Obligors (and to the Trustee, if given by the holders), may declare the
<PAGE>
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 Obligors 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
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 TEL 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 Obligors are required to furnish to the Trustee annually a certificate
as to compliance by the Obligors with all conditions and covenants under each
Indenture (Section 4.3).
Discharge and Defeasance. Unless otherwise specified in the applicable
Prospectus Supplement, the Obligors can discharge or defease their respective
obligations with respect to any series of Debt Securities as set forth below
(Article Ten).
The Obligors may discharge all of their obligations (except those set
forth below) to holders of any series of Debt Securities issued under any
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
<PAGE>
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
Obligors may also elect at any time to (a) defease and be discharged from all
of their 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 their 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 Obligors irrevocably deposit 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 any of the Obligors is a party or
by which it is bound; and (iii) the Obligors deliver 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 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 Obligors to maintain an office or agency in respect of Debt
Securities of such series (Section 10.1).
The Obligors may exercise the defeasance option with respect to any series
of Debt Securities notwithstanding the prior exercise of the covenant
defeasance option with respect to any series of Debt Securities. If the
Obligors exercise the 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 Obligors exercise the 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
<PAGE>
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 Obligors
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 any of the Obligors 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 The Chase
Manhattan Bank to act as Trustee for a series of Senior Debt Securities or TEL
Subordinated Debt Securities and United States Trust Company of New York to act
as Trustee for a series of Senior 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 Obligors 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 Obligors 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 Issuer, 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, in the case of the TEC Indentures, make any change adverse to the
interest of the holders in the terms and conditions of the Guarantee or (b)
reduce the aforesaid percentage in aggregate principal amount of Debt
Securities of any series issued under such Indenture (Section 8.2).
Consolidation, Merger, Sale or Conveyance. Except as otherwise provided in
the applicable Prospectus Supplement, the TEC Indentures provide that TEC or
the Guarantor may, and the TEL Indentures provide that TEL 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 or partnership organized under the laws of the United States or any
<PAGE>
political subdivision thereof or therein or under the laws of the Cayman
Islands or any political subdivision thereof, provided that (i) the successor
corporation assumes all obligations of TEC or TEL, as the case may be, by
supplemental indenture satisfactory in form to the applicable Trustee executed
and delivered to such Trustee, under the Indentures and the Debt Securities,
(ii) immediately 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.
Condition for Release of TEC . Except as otherwise provided in the
applicable Prospectus Supplement, each TEC Indenture provides that TEC may be
released from its obligations under such TEC Indenture and the TEC Debt
Securities, without the consent of the holders of the TEC Debt Securities of
any series, if the 1997 Notes and the 2000 Notes issued by TEC are no longer
outstanding and if TEL or any successor to TEL has assumed the obligations of
TEC under such Debt Securities. In the event of such release, a taxable
sale or exchange of a Debt Security for a new Debt Security will be deemed to
occur. As a result, a holder of a Debt Security may recognize gain or loss on
the sale or exchange and may be required to include in income different amounts
during the remaining term of the Debt Security than would have been included
absent such release.
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 TEL and
its Restricted Subsidiaries, less applicable reserves and other properly
deductible items and after deducting therefrom (a) all current liabilities
and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all in accordance with
generally accepted accounting principles consistently applied.
"Indebtedness," with respect to any person, means, without duplication:
(a)(i) the principal of, premium, if any, and interest, if any,
on indebtedness for money borrowed of such person, indebtedness of
such person evidenced by bonds, notes, debentures or similar
obligations, and any guaranty by such person of any indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures
or similar obligations of any other person, whether any such
indebtedness or guaranty is outstanding on the date of the Indenture
or is thereafter created, assumed or incurred, (ii) obligations of
such person for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit transaction, (iii) the
principal of and premium, if any, and interest, if any, on
indebtedness incurred, assumed or guaranteed by such person in
connection with the acquisition by it or any of its subsidiaries of
any other businesses, properties or other assets, (iv) lease
obligations that such person capitalized in accordance with Statement
of Financial Accounting Standards No. 13 promulgated by the Financial
<PAGE>
Accounting Standards Board or such other generally accepted
accounting principles as may be from time to time in effect, (v) any
indebtedness of such person representing the balance deferred and
unpaid of the purchase price of any property or interest therein
(except any such balance that constitutes an accrued expense or trade
payable) and any guaranty, endorsement or other contingent obligation
of such person in respect of any indebtedness of another that is
outstanding on the date of the Indenture or is thereafter created,
assumed or incurred by such person and (vi) obligations of such
person under interest rate, commodity or currency swaps, caps,
collars, options and similar arrangements if and to the extent that
any of the foregoing indebtedness in (i) through (vi) would appear as
a liability on the balance sheet of such person in accordance with
generally accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clause (a) above.
"Restricted Subsidiary" means (a) any Subsidiary of TEL other than an
Unrestricted Subsidiary, and (b) any Subsidiary of TEL which was an
Unrestricted Subsidiary but which, subsequent to the date of the
Indentures, is designated by the Board of Directors of TEL to be a
Restricted Subsidiary; provided, however, that TEL may not designate any
such Subsidiary to be a Restricted Subsidiary if TEL would thereby breach
any covenant or agreement contained in the Indentures (on the assumptions
that any outstanding Indebtedness of such Subsidiary was incurred at the
time of such designation).
"Subsidiary" of any specified Person means any corporation of which
such Person, or such Person and one or more Subsidiaries of such Person,
or any one or more Subsidiaries of such Person, directly or indirectly own
voting securities entitling any one or more of such Person 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.
"Unrestricted Subsidiary" means (a) any Subsidiary of TEL 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 of TEL substantially all the
assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the character described in clause (a) 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 a Senior Debt
Indenture and will rank pari passu with all other unsecured and unsubordinated
debt of the Issuer of such Senior Debt Securities.
<PAGE>
Limitations on Liens. The Senior Debt Indentures provide that, so long as
any Senior Debt Securities are outstanding, TEL 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 TEL 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 Indentures, 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 TEL 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 TEL or any Restricted Subsidiary (whether or not the
obligations secured thereby are assumed by TEL 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 TEL or another Restricted Subsidiary; (d) any mortgage, pledge, security
interest, lien or encumbrance arising from or in connection with a conveyance
by TEL or a Restricted Subsidiary of any production payment with respect to
oil, gas, natural gas, carbon dioxide, sulphur, helium, coal, metals, minerals,
steam, timber or other natural resources; (e) any mortgage, pledge, security
interest, lien or encumbrance with respect to, or other transfer of, crude oil,
natural gas or other petroleum hydrocarbons in place for a period of time
until, or in an amount such that, the transferee will realize therefrom a
specified amount (however determined) of money or of such crude oil, natural
gas or other petroleum hydrocarbons; (f) any mortgage, pledge, security
interest, lien or encumbrance required by any contract or statute in order to
permit TEL or any Restricted Subsidiary to perform any contract or subcontract
made by it with or at the request of the United States or any State thereof or
any foreign government or any department, agency, organization or
instrumentality thereof, or to secure partial, progress, advance or other
payments to TEL or any Restricted Subsidiary by such governmental unit pursuant
to the provisions of any contract or statute; (g) any mortgage, pledge,
security interest, lien or encumbrance in favor of TEL or any wholly-owned
Subsidiary of TEL; (h) any mortgage, pledge, security interest, lien or
encumbrance created or assumed by TEL or a Restricted Subsidiary in connection
with the issuance of debt securities the interest on which is excludable from
gross income of the holder of such security pursuant to the Internal Revenue
Code of 1986, as amended, for the purpose of financing, in whole or in part,
the acquisition or construction of property or assets to be used by TEL or a
Subsidiary; (i) any extension, renewal or refunding of any mortgage, pledge,
security interest, lien or encumbrance described in the foregoing subparagraphs
(a) through (h) on substantially the same property or assets theretofore
<PAGE>
subject thereto; or (j) any mortgage, pledge, security interest, lien or
encumbrance securing any Indebtedness in an amount which, together with all
other Indebtedness secured by a mortgage, pledge, security interest, lien or
encumbrance that is not otherwise permitted by the 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 TEL 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
Indentures).
Provisions Applicable Solely to Senior Subordinated Debt Securities and TEL
Subordinated Debt Securities
Subordination. The TEL Subordinated Debt Securities will be subordinate
and junior in right of payment, to the extent set forth in the TEL Subordinated
Debt Indenture, to all Senior Indebtedness of TEL. The Senior Subordinated Debt
Securities will be subordinate and junior in right of payment, to the extent
set forth in the Senior Subordinated Debt Indentures, to all Senior
Indebtedness of the Issuer. The Senior Subordinated Debt Securities will rank
senior to all existing and future Indebtedness of the Issuer that is neither
Senior Indebtedness of the Issuer nor Senior Subordinated Indebtedness, and
only Indebtedness of the Issuer that is Senior Indebtedness of the Issuer will
rank senior to the Senior Subordinated Debt Securities in accordance with the
subordination provisions of the Senior Subordinated Debt Indentures.
"Senior Indebtedness" of the Issuer is defined in the TEL Subordinated
Debt Indenture and the Senior Subordinated Debt Indentures as Indebtedness of
the Issuer outstanding at any time (other than the Indebtedness evidenced by
the Debt Securities of any series) 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 or prior in right of payment to the Debt
Securities or is pari passu or subordinate by its terms in right of payment to
the Debt 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
certain events of bankruptcy or insolvency unless such interest is an allowed
claim enforceable against the Issuer in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
"Senior Indebtedness" of the Guarantor is defined in the TEC Senior
Subordinated Debt Indenture as Indebtedness of the Guarantor outstanding at any
time (other than the Indebtedness evidenced by the Guarantee of any series)
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 or prior in right of payment to the Guarantee or is pari passu or
subordinate by its terms in right of payment to the Guarantee, (b) renewals,
extensions and modifications of any such Indebtedness, (c) any Indebtedness of
the Guarantor to a wholly-owned Subsidiary of the Guarantor, (d) interest
accruing after the filing of a petition initiating certain events of bankruptcy
<PAGE>
or insolvency unless such interest is an allowed claim enforceable against the
Guarantor in a proceeding under federal or state bankruptcy laws and (e) trade
payables.
"Senior Subordinated Indebtedness" is defined in the TEL Senior
Subordinated Debt Indenture as the TEL Senior Subordinated Debt Securities
and any other Indebtedness of TEL that ranks pari passu with the TEL Senior
Subordinated Debt Securities (including the Guarantees of the 1997 Notes and
the 2000 Notes). Any Indebtedness of TEL that is subordinate or junior by
its terms in right of payment to any other Indebtedness of TEL shall be
subordinate to Senior Subordinated Indebtedness of TEL 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 of TEL and (ii) is not subordinated by
its terms to any Indebtedness of TEL which is not Senior Indebtedness of TEL.
"Senior Subordinated Indebtedness" is defined in the TEC Senior
Subordinated Debt Indenture as the TEC Senior Subordinated Debt Securities, the
Guarantee and any other Indebtedness of TEC or the Guarantor that ranks pari
passu with the TEC Senior Subordinated Debt Securities (including the 1997
Notes, the 2000 Notes and the Guarantees thereof). Any Indebtedness of TEC or
the Guarantor that is subordinate or junior by its terms in right of payment to
any other Indebtedness of TEC or the Guarantor shall be subordinate to Senior
Subordinated Indebtedness unless the instrument creating or evidencing the same
or pursuant to which the same is outstanding specifically provides that such
Indebtedness (i) is to rank pari passu with other Senior Subordinated
Indebtedness and (ii) is not subordinated by its terms to any Indebtedness of
TEC or the Guarantor which is not Senior Indebtedness of TEC or Senior
Indebtedness of the Guarantor.
"Subordinated Indebtedness" of any of the Obligors means the Senior
Subordinated Debt Securities, the Guarantees, any other Senior Subordinated
Indebtedness of such Obligor and any other Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness of such Obligor.
If (i) the Issuer should default in the payment of any principal of,
premium, if any, or interest, if any, on any Senior Indebtedness of the Issuer
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise or (ii) any other
default with respect to Senior Indebtedness of the Issuer 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 Issuer 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 TEL Subordinated Debt Securities, or
in respect of any redemption, retirement, purchase or other acquisition of the
Senior Subordinated Debt Securities or the TEL Subordinated Debt Securities
other than those made in capital stock of TEL (or cash in lieu of fractional
shares thereof) (Sections 13.1 and 13.4 of the Senior Subordinated Debt
Indentures and Sections 13.1 and 13.4 of the TEL Subordinated Debt Indenture).
<PAGE>
If any default (other than a default described in the preceding paragraph)
under the Senior Indebtedness of the Issuer, 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 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, the Issuer 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 Issuer may resume payments on the
Senior Subordinated Debt Securities and the TEL Subordinated Debt Securities
after such Payment Blockage Period.
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, and is not dismissed within 60 days after such
filing; (ii) the Issuer (A) commences a voluntary case or other proceeding
seeking liquidation, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or other relief with respect to itself or its
debt or other liabilities under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or (B) consents to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or (C) fails generally to, or cannot, pay its
debts generally as they become due or (D) takes any corporate action to
authorize or effect any of the foregoing; or (iii) any Subsidiary of the Issuer
takes, suffers or permits to exist any of the events or conditions referred to
in the foregoing clause (i) or (ii), then all Senior Indebtedness of the Issuer
(including any interest thereon accruing after the commencement of any such
proceedings) will first be paid in full before any payment or distribution,
whether in cash, securities or other property, is made by the Issuer to any
holder of Senior Subordinated Debt Securities or TEL Subordinated Debt
Securities on account of the principal of, premium, if any, or interest, if
any, on such Senior Subordinated Debt Securities or TEL Subordinated Debt
Securities, as the case may be. 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 the
<PAGE>
subordination provisions with respect to the indebtedness evidenced by the
Senior Subordinated Debt Securities or the TEL Subordinated Debt Securities, to
the payment of all Senior Indebtedness of the Issuer then outstanding and to
any securities issued in respect thereof under any such plan of reorganization
or readjustment) that would otherwise (but for the subordination provisions) be
payable or deliverable in respect of the Senior Subordinated Debt Securities or
the TEL Subordinated Debt Securities of any series will be paid or delivered
directly to the holders of Senior Indebtedness of the Issuer in accordance with
the priorities then existing among such holders until all Senior Indebtedness
of the Issuer (including any interest thereon accruing after the commencement
of any such proceedings) 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 of the Issuer, the holders of Senior Subordinated Debt Securities,
together with the holders of any obligations of the Issuer ranking on a parity
with the Senior Subordinated Debt Securities, will be entitled to be repaid
from the remaining assets of the Issuer 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 Issuer ranking
junior to the Senior Subordinated Debt Securities (including the TEL
Subordinated Debt Securities) and such other obligations (Section 13.1 of the
Senior Subordinated Debt Indentures and Section 13.1 of the TEL Subordinated
Debt Indenture).
If 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 Senior Subordinated Debt
Securities or the TEL Subordinated Debt Securities, to the payment of all
Senior Indebtedness of the Issuer then outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment),
shall be received by the Trustee, or any holder of any Senior Subordinated Debt
Securities or TEL Subordinated Debt Securities in contravention of any of the
terms of the Senior Subordinated Debt Indentures or the TEL 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 of the Issuer then
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness of the Issuer
remaining unpaid to the extent necessary to pay all such Senior Indebtedness of
the Issuer in full (Section 13.1 of the Senior Subordinated Debt Indentures and
Section 13.1 of the TEL Subordinated Debt Indenture).
By reason of such subordination, in the event of the insolvency of the
Issuer, holders of Senior Indebtedness of the Issuer may receive more, ratably,
than holders of the Senior Subordinated Debt Securities or TEL 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 TEL
Subordinated Debt Securities.
<PAGE>
Concerning the Trustee
The Chase Manhattan Bank, the Trustee under the Senior Debt Indentures and
the TEL Subordinated Debt Indenture, may make loans to TEC or TEL in the
normal course of business. The Chase Manhattan Bank serves as trustee with
respect to TEC 's 12 1/2% Senior Subordinated Discount Notes due 1997. United
States Trust Company of New York, the Trustee under the Senior Subordinated
Debt Indentures, serves as trustee with respect to TEC 's 9-3/4% Senior
Subordinated Discount Notes due 2000. If a bank or trust company other than The
Chase Manhattan 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.
DESCRIPTION OF SHARE CAPITAL OF TEL
The following statements with respect to TEL's share capital are subject
to the detailed provisions of the Company's Articles of Association (the
"Articles of Association"), its Memorandum of Association (the "Memorandum of
Association"), the resolutions with respect to the Convertible Preference
Shares (the "Resolutions"), and the Preference Share Purchase Rights created
pursuant to the Rights Agreement entered into between the Company and Chemical
Bank, as Rights Agent (the "Rights Agreement"). These statements do not purport
to be complete and, while the Company believes the descriptions of the material
provisions of the Articles of Association, Memorandum of Association,
Resolutions and Rights Agreement contained in this Prospectus are accurate
statements with respect to such material provisions, such statements are
subject to the detailed provisions in the Articles of Association, Memorandum
of Association, Resolutions and Rights Agreement to which reference is hereby
made for a full description of such provisions.
Preference Shares
Under the Articles of Association, the Company has authority to issue
20,000,000 preference shares, par value $.01 per share. There were 253,030
shares of 5% convertible preference shares, par value $.01 per share (the
"Convertible Preference Shares") outstanding at September 5, 1996. No other
preference shares are currently outstanding.
The Preference Shares 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
preference shares 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 Preference Shares offered
hereby will be described in a Prospectus Supplement relating to such series and
will include the following:
<PAGE>
(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;
(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 share capital of TEL 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 5% Convertible Preference Shares
Pursuant to the Merger, each outstanding share of 5% convertible preferred
stock, no par value, of TEC was converted into one Convertible Preference
Share of the Company.
Dividends. Holders of Convertible Preference Shares are entitled to
receive, when, as, and if declared by the Board of Directors of the Company out
of funds of the Company legally available for payment, cumulative cash
dividends at the annual rate per share equal to 5 percent of the Redemption
Price (defined below) of the shares payable semi-annually on September 30 and
March 30 in each year, 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 accrue from the date on which
the Convertible Preference Shares were issued and are 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 of the Company. The amount of dividends
<PAGE>
payable for each semi-annual dividend period is computed by dividing the annual
dividend amount by two. The amount of dividends payable for any period other
than a full semi-annual dividend period is 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 Preference Shares which may be in arrears.
If dividends on the Convertible Preference Shares 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 Preference Shares shall be increased by an amount equal to the
prime rate of Morgan Guaranty Trust Company of New York as in effect on each
Calculation Date plus 1 percent applied against the amount of dividends so due
and unpaid until such dividends shall be paid (the "Penalty Dividend").
The Convertible Preference Shares have priority as to dividends over
Ordinary Shares and any other series or class of the Company's shares hereafter
issued which ranks junior as to dividends to the Convertible Preference Shares
("Junior Dividend Shares"), and no dividend (other than dividends payable
solely in Junior Dividend Shares) may be paid on, and no purchase, redemption,
or other acquisition may be made by the Company of, any Junior Dividend Shares
unless all accrued and unpaid dividends on the Convertible Preference Shares
have been paid or declared and set apart for payment. The Company may not pay
dividends on any class or series of its shares having parity with the
Convertible Preference Shares as to dividends ("Parity Dividend Shares"),
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 Preference Shares and may not pay
dividends on the Convertible Preference Shares 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 Shares. Notwithstanding the preceding sentence, whenever all
accrued dividends are not paid in full on the Convertible Preference Shares or
any Parity Dividend Shares, all dividends declared on the Convertible
Preference Shares and such Parity Dividend Shares will be declared or made pro
rata so that the amount of dividends declared per share on the Convertible
Preference Shares and such Parity Dividend Shares will bear the same ratio that
accrued and unpaid dividends per share on the Convertible Preference Shares and
such Parity Dividend Shares bear to each other. The Convertible Preference
Shares will be junior as to dividends to any series or class of TEL's shares
hereafter issued which ranks senior as to dividends to the Convertible
Preference Shares ("Senior Dividend Shares"), and if at any time TEL has failed
to pay or declare and set apart for payment accrued and unpaid dividends on any
Senior Dividend Shares, TEL may not pay any dividend on the Convertible
Preference Shares.
Liquidation Rights. In case of the voluntary or involuntary liquidation,
dissolution, or winding up of the Company, holders of Convertible Preference
Shares are entitled to receive an amount per share equal to the Redemption
Price, plus any accrued and unpaid dividends (including Penalty Dividends) to
the payment date (the "Liquidation Price"), before any payment or distribution
is made to the holders of Ordinary Shares or any other series or class of the
Company's shares hereafter issued which ranks junior as to liquidation rights
to the Convertible Preference Shares, but the holders of Convertible Preference
<PAGE>
Shares 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
shares hereafter issued which ranks senior as to liquidation rights to the
Convertible Preference Shares ("Senior Liquidation Shares") has been paid in
full; provided, if, at such time, any holder of Convertible Preference Shares
has any outstanding debts, liabilities or engagements to or with the Company
(whether presently payable or not), either alone or jointly with any other
person, whether a shareholder or not, (including, without any limitation, any
liability associated with the unpaid purchase price of such Convertible
Preference Shares), the liquidator appointed to oversee the liquidation of the
Company may deduct from the fixed liquidation amount payable in respect of such
Convertible Preference Shares the aggregate amount of such debts, liabilities
and engagements and apply such amount to any of such debts, liabilities or
engagements. The holders of Convertible Preference Shares and all series or
classes of the Company's shares hereafter issued which rank on a parity as to
liquidation rights with the Convertible Preference Shares are entitled to share
ratably, in accordance with the respective preferential amounts payable on such
shares, in any distribution (after payment of the liquidation price of the
Senior Liquidation Shares) 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 Convertible Preference Shares, 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 company
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.
Redemption. The Company may, at its option, redeem the Convertible
Preference Shares, in whole or in part, at any time on or after March 30, 1998
or at any time when there are fewer than 133,005 Convertible Preference Shares
outstanding. The redemption price payable upon such optional redemption shall
be the Redemption Price plus any accrued and unpaid dividends (including
Penalty Dividends) to the redemption date. Such Redemption Price shall be
payable in cash.
The Convertible Preference Shares 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 plus any accrued and unpaid
dividends (including Penalty Dividends) to the redemption date; (ii) such
number of Ordinary Shares whose aggregate value (based on the then current
market price determined as set forth in the resolution of the Board of
Directors designating the Convertible Preference Shares) equals the Redemption
Price plus any accrued and unpaid dividends (including Penalty Dividends) to
the redemption date; or (iii) a combination of cash and Ordinary Shares equal
to the Redemption Price plus any accrued and unpaid dividends (including
Penalty Dividends) to the redemption date. The Redemption Price equals $34.41
per share.
Voting Rights. The holders of Convertible Preference Shares have no voting
rights except as described below or as required by Cayman Islands law. In
exercising any such vote each outstanding Convertible Preference Share is
entitled to one vote.
<PAGE>
So long as any Convertible Preference Shares are outstanding, the Company
will not, without the affirmative vote or consent of the holders of at least
two-thirds of the outstanding Convertible Preference Shares, voting or
consenting separately as a class with holders of any other class of the
Company's preference shares similarly affected, issue other than wholly for
cash consideration, any shares of any class of Senior Dividend Shares or Senior
Liquidation Shares, or amend the Articles of Association in a manner adversely
affecting the rights of such shareholders.
The Articles of Association may be amended to increase the number of
authorized shares of the Company's preference shares without the vote of the
holders of the outstanding Convertible Preference Shares.
The holders of the Convertible Preference Shares have no pre-emptive
rights with respect to any shares of the Company or any other securities of TEL
convertible into or carrying rights or options to purchase any such shares.
Conversion Rights. The holders of Convertible Preference Shares are
entitled to convert their Convertible Preference Shares into Ordinary Shares
subject to the qualifications described below, except that, with respect to
Convertible Preference Shares 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 Convertible
Preference Shares that may be accrued or unpaid or in arrears upon conversion
of shares of Convertible Preference Shares 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 resolutions of the Board of Directors
designating the Convertible Preference Shares) of the Ordinary Shares.
Each Convertible Preference Share is convertible initially into one
Ordinary Share. However, the number of Ordinary Shares issuable on conversion
of each Convertible Preference Share (the "Conversion Rate") is 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 Ordinary Shares as a
stock dividend, in connection with combinations and subdivisions of Ordinary
Shares, upon certain reclassifications of Ordinary Shares, upon the issuance to
the Company's shareholders of rights or warrants to subscribe for or purchase
Ordinary Shares at a price per share less than the then current market price of
Ordinary Shares, and in connection with certain distributions to the Company's
shareholders 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 per cent 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
company, or in the case of any merger of another company into the Company
(other than a merger with a company in which merger the Company is the
<PAGE>
continuing company and which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the Company), or
in the case of a sale or conveyance of all or substantially all of the assets
of the Company to another company, the Company will be required to make proper
provisions so that the holder of each Convertible Preference Share then
outstanding will have the right thereafter to convert such Convertible
Preference Share 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 Ordinary Shares into which such
Convertible Preference Share might have been converted immediately prior to
such consolidation, merger, sale or conveyance.
Preference Share Purchase Rights
The Board of Directors of TEL has adopted a Shareholder Rights Plan
pursuant to which preference share purchase rights attach to all Ordinary
Shares at the rate of one right for each Ordinary Share. Chemical Bank is the
Rights Agent for the Preference Share Purchase Rights. Each right entitles the
registered holder to purchase from the Company one one-thousandth of a Series A
Junior Participating Preference Share, par value $.01 per share (the "Junior
Preference Shares"), of the Company at a price of $120 per one one-thousandth
of a share of such Junior Preference Shares, subject to adjustment.
Generally, the rights only become distributable ten days following public
announcement that a person has acquired beneficial ownership of 15% or more of
the Ordinary Shares or ten business days following commencement of a tender or
exchange offer for 15% or more of the outstanding Ordinary Shares; provided
that, pursuant to the terms of the Shareholder Rights Plan, Oppenheimer Group,
Inc. may increase its level of beneficial ownership to 19.9% without triggering
the rights. If, among other events, any person becomes the beneficial owner of
15% or more of the Ordinary Shares, each right not owned by such person
generally becomes the right to purchase such number of Ordinary Shares that is
equal to the amount obtained by dividing the right's exercise price (currently
$120) by 50% of the market price of the Ordinary Shares on the date of the
first occurrence. In addition, if the Company is subsequently merged or certain
other extraordinary business transactions are consummated, each right generally
becomes a right to purchase such number of 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 Ordinary Shares 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. At any time after any person or group acquires 15% or more of
the Ordinary Shares outstanding and prior to the acquisition by such person or
group of 50% or more of the outstanding Ordinary Shares or the occurrence of an
event described in the prior paragraph, the Board of Directors of the Company
may exchange the rights (other than rights owned by such person or group which
will have become void), in whole or in part, at an exchange ratio of one
Ordinary Share, or one one-thousandth of a Junior Preference Share per right
(subject to adjustment). The Company has the ability to amend the rights
(except the redemption price) in any manner prior to the public announcement
that a 15% position has been acquired or a tender offer has been commenced.
<PAGE>
Any Junior Preference Shares issued pursuant to the Shareholders Rights
Plan will rank junior as to dividends and liquidation to the Convertible
Preference Shares. Junior Preference Shares purchasable upon exercise of the
rights will not be redeemable. Each Junior Preference Share will be entitled,
when, as and if declared, to a minimum preferential quarterly dividend payment
of $1 per share but will be entitled to an aggregate dividend of 1,000 times
the dividend declared per Ordinary Share. In the event of liquidation, the
holders of the Junior Preference Shares will be entitled to a minimum
preferential liquidation payment of $1000 per share (plus any accrued but
unpaid dividends) but will be entitled to an aggregate payment of 1,000 times
the payment made per Ordinary Share. Each Junior Preference Share will have
1,000 votes, voting together with Ordinary Shares. Finally, in the event of any
merger, consolidation or other transaction in which Ordinary Shares are
converted or exchanged, each Junior Preference Share will be entitled to
receive 1,000 times the amount received per Ordinary Share. These rights are
protected by customary antidilution provisions.
The Company will be entitled to redeem the rights at $0.01 a right at any
time prior to the time that a 15% position has been acquired. The rights will
expire on May 22, 2005.
Ordinary Shares
General. Under the Articles of Association, the Company has authority to
issue 200,000,000 Ordinary Shares. There were 36, 335, 113 Ordinary Shares
outstanding as of September 5, 1996.
Voting and Other Rights. Under the Articles of Association, the holders of
Ordinary Shares are entitled to one vote for each share held on all matters
submitted to shareholders' meetings, including the election and removal of
directors, and vote together as a single class with any voting preference
shares unless the terms of any voting preference shares or the Articles of
Association otherwise provide. The Articles of Association provide that the
quorum required for a general meeting of the shareholders is a majority of the
outstanding Ordinary Shares entitled to vote at such meeting. All matters voted
upon at any duly held shareholders' meeting shall be carried by a majority of
the votes cast at the meeting by shareholders represented in person or by
proxy, except (i) election of directors, who are elected by plurality vote,
(ii) approval of a merger or a similar arrangement, which, pursuant to Cayman
Islands law, requires the approval by 75% of the votes cast (but, in any event,
under the Articles of Association, at least a majority of the outstanding
shares), and (iii) approval of a Special Resolution (as defined below). A
change of corporate name, the voluntary dissolution, liquidation or winding-up
of the affairs of the Company, a reduction of paid-up share capital, and any
amendment to the Company's Articles of Association or Memorandum of Association
require approval by a Special Resolution by the shareholders of the Company. A
Special Resolution requires the approval of at least two-thirds of the votes
cast by the shareholders represented in person or by proxy at a duly convened
meeting. The Board of Directors or the President may at any time proceed to
convene a general meeting of the Company. The Company must provide at least 10
days' notice of a general meeting.
<PAGE>
Because holders are not entitled to cumulate their votes, shareholders
holding a majority of the outstanding Ordinary Shares, voting together as a
class with the holders of any voting preference shares which may be issued, are
able to elect all members of the board of directors of TEL. The Articles of
Association provide that the directors are to be elected in three classes of
approximately equal number and for a term of three years, with the result that
shareholders will not vote for the election of a majority of directors in any
single year. Holders of Ordinary Shares have no preemptive rights.
The Articles of Association provide that whenever the share capital of TEL
is divided into different classes of shares, the rights attached to any class
may (unless otherwise provided by the terms of issue of the shares of that
class) be varied only with the consent in writing of the holders of such class
or pursuant to a Special Resolution adopted at a meeting with such holders
voting separately as a class. The Articles of Association further provide that,
unless otherwise provided by the rights attached to any shares, such rights
will not be deemed to be varied by the allotment of further shares which confer
on the holders voting rights more favorable than those conferred by such
shares. Such rights will not otherwise be deemed to be varied by the creation
or issuance of further shares, including any additional Ordinary Shares or
different classes of shares with preferential rights as to dividends or
capital.
There are no limitations on the right of nonresident shareholders to hold
or vote their Ordinary Shares imposed by Cayman Islands law or the Articles of
Association.
Dividend Rights. The holders of Ordinary Shares are entitled at any time
to receive such dividends as are declared by the Board of Directors. The
ability of the Company to pay dividends on capital stock is restricted by
covenants in the indentures relating to the 1997 Notes and the 2000 Notes. The
Company currently intends to retain earnings for use in its business and the
financing of its capital requirements. The payment of any future cash dividends
is necessarily dependent upon the earnings and financial needs of the Company,
along with applicable legal and contractual restrictions.
Liquidation of the Company. If, at the time of any liquidation,
dissolution or winding-up of the Company the holder of Ordinary Shares has any
outstanding debts, liabilities or engagements to or with the Company (whether
presently payable or not), either alone or jointly with any other person,
whether a shareholder or not (including, without limitation, any liability
associated with the unpaid purchase price of such Ordinary Shares), the
liquidator appointed to oversee the liquidation of the Company may deduct from
the amount payable in respect of such Ordinary Shares the aggregate amount of
such debts, liabilities and engagements and apply such amount to any of such
holder's debts, liabilities or engagements to or with TEL (whether presently
payable or not). The liquidator may distribute, in kind, to the holders of the
Ordinary Shares remaining assets of TEL or may sell, transfer or otherwise
dispose of all or any part of such remaining assets to any other company, trust
or entity and receive payment therefor in cash, shares or obligations of such
other company, trust or entity or any combination thereof, and may sell all or
any part of the consideration so received, and may distribute the consideration
received or any balance or proceeds thereof to holders of the Ordinary Shares
<PAGE>
in accordance with the procedures set forth above. The liquidator may, with the
like sanction, vest the whole or any part of such assets in trustees upon such
trusts for the benefit of the contributories as the liquidator, with the like
sanction shall think fit, but so that no shareholder shall be compelled to
accept any shares or other securities whereon there is any liability.
Convertible Debentures
The Company has a convertible debenture plan under which key management
personnel may purchase debentures that are convertible into Ordinary Shares.
All debentures issuable under the plan have been issued. The aggregate number
of Ordinary Shares issuable upon the conversion of the debentures cannot exceed
1,000,000 shares, subject to adjustment in certain events. Of such shares,
458,000 are issuable upon conversion of outstanding debentures and 4,000 shares
are available for issuance upon conversion of debentures issuable in the
future.
DESCRIPTION OF WARRANTS
TEC may issue Warrants to purchase TEC Debt Securities and TEL may issue
TEL Warrants, including Warrants to purchase Ordinary Shares or Preference
Shares and Warrants to purchase TEL Debt Securities. All obligations of TEC
under the Warrants to purchase TEC Debt Securities will be fully and
unconditionally guaranteed by TEL. 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 TEC and/or
TEL and a Warrant Agent ("Warrant Agent"). The Warrant Agent will act solely as
an agent of TEC and/or TEL in connection with the Warrants 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
<PAGE>
considerations; and (xii) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
PLAN OF DISTRIBUTION
TEL and TEC 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
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 TEC or TEL 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
TEC or TEL 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 TEC or TEL, to
indemnification against or contribution toward certain civil liabilities,
including liabilities under the 1933 Act.
If so indicated in the Prospectus Supplement, TEC or TEL will authorize
underwriters or other persons acting as its agents to solicit offers by certain
institutions to purchase Securities from it 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.
<PAGE>
LEGAL MATTERS
Certain legal matters with respect to the validity of the Securities will
be passed upon for TEC by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), New York, New York and for TEL by W.S.
Walker & Company, Grand Cayman, Cayman Islands. Certain legal matters with
respect to the Securities will be passed upon for the underwriters or agents,
if any, named in the Prospectus Supplement by Andrews & Kurth L.L.P., Houston,
Texas.
EXPERTS
The consolidated financial statements of Triton Energy Corporation as of
and for the year ended December 31, 1995, the seven months ended December 31,
1994 and the years ended May 31, 1994 and 1993, incorporated herein by
reference to TEC 's Annual Report on Form 10-K for the year ended December 31,
1995, have been so incorporated in reliance upon the report of Price Waterhouse
LLP, 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
Energy Corporation 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.
<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 September 9, 1996
PROSPECTUS
Triton Energy Limited
Dividend Reinvestment and Stock Purchase Plan
_________________________
Triton Energy Limited ("TEL" or the "Company") hereby offers participation
in its Dividend Reinvestment and Stock Purchase Plan (the "Plan"). The Plan is
designed to provide holders of TEL's ordinary shares, $.01 par value per share
("Ordinary Shares"), and 5% Convertible Preference Shares, $.01 par value per
share ("5% Preference Shares" and, together with any other class of TEL's
preference shares that may be outstanding, "Preference Shares") and other
interested investors with a convenient and economical method to purchase
Ordinary Shares from the Company at a price that initially will be equal to a
3% discount from the market price (as determined in accordance with the Plan)
by making optional cash investments and reinvesting all or a portion of any
cash dividends in Ordinary Shares. The Plan is also intended to provide the
Company with a cost-efficient and flexible mechanism to raise equity capital
because shares issuable under the Plan will be newly issued Ordinary Shares.
Holders of shares in broker or nominee names may participate in the Plan, in
which case, brokers or nominees will make optional cash investments and
reinvest dividends on behalf of beneficial owners. Some of the significant
features of the Plan are as follows:
-- Participants may purchase Ordinary Shares by making optional cash
investments of $100 to $10,000 in a given month or, for persons who
are not then shareholders, by making an initial optional cash
investment of $5,000 to $10,000. Optional cash investments in excess
of $10,000 may be made only with permission of the Company.
-- Holders of 5% Preference Shares and holders of Ordinary Shares, if
the Company begins to pay dividends on Ordinary Shares, may purchase
Ordinary Shares by automatically reinvesting all or a portion of
their cash dividends.
Participation in the Plan is entirely voluntary, and participants may
terminate their participation at any time.
<PAGE>
The Company has never declared or paid a cash dividend on its Ordinary
Shares and the Company expects to retain any earnings for use in its business.
The ability of the Company to pay dividends on its capital stock, other than
the 5% Preference Shares, is restricted by covenants in indentures to which it
is a party. The Plan, however, is designed to accommodate the reinvestment of
dividends in the event that the Company should pay dividends on the Ordinary
Shares in the future. Holders of Ordinary Shares are cautioned that the
existence of the Plan in no way implies that the Company will modify its
current policy of not paying dividends. The payment of dividends at any time is
dependent upon the Company's earnings and financial needs, along with
applicable legal and contractual restrictions.
For a discussion of certain risk factors that should be considered by
prospective investors, see "Risk Factors," beginning on page 3.
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 , 1996.
<PAGE>
AVAILABLE INFORMATION
TEL 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 TEL 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 the Web site
(http://www.sec.gov.) maintained by the Commission; and at regional offices of
the Commission at the Citicorp 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, as amended (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) Annual Report on Form 10-K of Triton Energy Corporation, a
Delaware corporation and a wholly owned subsidiary of TEL ("TEC "), for the
year ended December 31, 1995, (ii) TEC 's Current Report on Form 8-K dated
February 9, 1996, (iii) TEL's Current Reports on Form 8-K dated May 20, 1996,
July 2, 1996 and September 9, 1996, (iv) TEL's Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1996 and June 30, 1996, and (v) the
description of the Ordinary Shares contained in TEL's Registration Statement on
Form 8-A, dated March 25, 1996, as amended by Form 8-A/A, dated August 14,
1996.
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
<PAGE>
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
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, 6688 North Central Expressway,
Suite 1400, Dallas, Texas 75206-9926, telephone (214) 691-5200.
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS
The Company is a Cayman Islands company, certain of its officers and
directors may be residents of various jurisdictions outside the United States
and its Cayman Islands counsel, W.S. Walker & Company, are residents of the
Cayman Islands. All or a substantial portion of the assets of TEL and of such
persons may be located outside the United States. As a result, it may be
difficult for investors to effect service of process within the United States
upon such persons or to enforce in United States courts judgments obtained
against such persons in United States courts and predicated upon the civil
liability provisions of the Securities Act. Notwithstanding the foregoing, TEL
has irrevocably agreed that it may be served with process with respect to
actions based on offers and sales of securities made hereby in the United
States by serving Robert B. Holland, III, c/o Triton Energy Corporation, 6688
North Central Expressway, Suite 1400, Dallas, Texas 75206-9926, TEL's United
States agent appointed for that purpose. TEL has been advised by its Cayman
Islands counsel, W.S. Walker & Company, that there is doubt as to whether
Cayman Islands courts would enforce (a) judgments of United States courts
obtained in actions against such persons or TEL that are predicated upon the
civil liability provisions of the Securities Act or (b) in original actions
brought against TEL or such persons predicated upon the Securities Act. There
is no treaty in effect between the United States and the Cayman Islands
providing for such enforcement, and there are grounds upon which Cayman Islands
courts may not enforce judgments of United States courts. Certain remedies
available under the United States federal securities laws would not be allowed
in Cayman Islands courts as contrary to that nation's policy.
<PAGE>
THE COMPANY
The Company is an international oil and gas exploration company primarily
engaged in exploration and production through subsidiaries and affiliates. The
Company's principal properties and operations are located in Colombia and
Malaysia-Thailand. The Company also has oil and gas interests in other Latin
American, European and Asian countries.
TEL was formed in the Cayman Islands in 1995 and became the parent holding
company of TEC through the merger (the "Merger") of a subsidiary of TEL with
and into TEC . The Merger was consummated on March 25, 1996. In connection with
the Merger, each share of common stock, par value $1.00 per share, of TEC , was
converted into one Ordinary Share. TEL's principal executive offices are
located at Caledonian House, Mary Street, P.O. Box 1043, George Town, Grand
Cayman, Cayman Islands and its telephone number is (809) 949-0050. The
"Company" refers to TEL and its consolidated subsidiaries.
RISK FACTORS
Certain statements included or incorporated by reference in this
Prospectus, such as proven oil and gas reserves, are forward-looking statements
(as such term is used in the Private Securities Litigation Reform Act of 1995),
and the factors discussed hereunder could cause actual results and developments
to be materially different from those expressed in or implied by such
statements. Accordingly, in addition to the other information set forth in or
incorporated by reference in this Prospectus, potential investors in the
Ordinary Shares should consider the following investment considerations.
The Oil and Gas Industry Generally. The Company's strategy is to focus its
exploration activities on what the Company believes are relatively high
potential prospects. No assurance can be given that these prospects contain
significant oil and gas reserves or that the Company will be successful in its
exploration activities thereon. The Company follows the full cost method of
accounting for exploration and development of oil and gas reserves whereby all
productive and nonproductive costs are capitalized. Costs related to
acquisition, holding and initial exploration of concessions in countries with
no proved reserves are initially capitalized, including internal costs directly
identified with acquisition, exploration and development activities. The
Company's exploration concessions are periodically assessed for impairment on a
country by country basis. If the Company's investment in exploration
concessions within a country where no proved reserves are assigned is deemed to
be impaired, the concessions are written down to estimated recoverable value.
If the Company abandons all exploration efforts in a country where no proved
reserves are assigned, all exploration costs associated with the country are
expensed. The Company's assessments of whether its investment within a country
is impaired and whether exploration activities within a country will be
abandoned are made from time to time based on its review and assessment of
drilling results, seismic data and other information it deems relevant. Due to
the unpredictable nature of exploration drilling activities, the amount and
timing of impairment expense are difficult to predict with any certainty.
<PAGE>
Financial information concerning the Company's assets, including capitalized
costs by geographic area, is set forth in Note 21 of Notes to Consolidated
Financial Statements in TEC 's Annual Report on Form 10-K for the year ended
December 31, 1995.
The markets for oil and natural gas historically have been volatile and
are likely to continue to be volatile in the future. Oil and natural gas prices
have been subject to significant fluctuations during the past several decades
in response to relatively minor changes in the supply of and demand for oil and
natural gas, market uncertainty and a variety of additional factors that are
beyond the control of the Company. These factors include the level of consumer
product demand, weather conditions, domestic and foreign government
regulations, political conditions in the Middle East and other production
areas, the foreign supply of oil and natural gas, the price and availability of
alternative fuels, and overall economic conditions. It is impossible to predict
future oil and gas price movements with any certainty.
The Company's oil and gas business is also subject to all of the operating
risks normally associated with the exploration for and production of oil and
gas, including, without limitation, blowouts, cratering, pollution,
earthquakes, labor disruptions and fires, each of which could result in
substantial losses to the Company due to injury or loss of life and damage to
or destruction of oil and gas wells, formations, production facilities or other
properties. In accordance with customary industry practices, the Company
maintains insurance coverage limiting financial loss resulting from certain of
these operating hazards. Losses and liabilities arising from uninsured or
underinsured events would reduce revenues and increase costs to the Company.
There can be no assurance that any insurance will be adequate to cover losses
or liabilities. The Company cannot predict the continued availability of
insurance, or its availability at premium levels that justify its purchase.
The Company's oil and gas business is also subject to laws, rules and
regulations in the countries in which the Company operates, which generally
pertain to production control, taxation, environmental and pricing concerns and
other matters relating to the petroleum industry. Many jurisdictions have at
various times imposed limitations on the production of oil and natural gas by
restricting the rate of flow for oil and natural gas wells below their actual
capacity. There can be no assurance that present or future regulation will not
adversely affect the operations of the Company.
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 was the operator or owner of a majority interest. Any
inability of the Company to meet its obligations in these and other contract
areas could have a material adverse effect on its interests in these contract
areas.
Financial Position. The Company reported income from continuing operations of
$24 million for the six months ended June 30, 1996 and $6.5 million for the
year ended December 31, 1995, but losses from continuing operations in the
seven month transition period ended December 31, 1994 and in each of the last
four fiscal years in the period ended May 31, 1994. To date, working capital
<PAGE>
(amounting to $30.3 million as of June 30, 1996), external sources of funding,
asset sales and net cash flow from operations have been sufficient to service
the Company's existing debt obligations and capital spending programs. The
Company expects to pursue external financing alternatives and may from time to
time consider dispositions 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, Malaysia-Thailand 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 Company's credit facility as well as covenants in the indenture pursuant
to which $240 million principal amount of TEC 's 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 TEC 's 9 3/4%
Senior Subordinated Discount Notes due 2000 (the "2000 Notes") were issued
in 1993.
For information regarding the Company's financial position and results of
operations, including the amounts of previous losses, the Company's net working
capital from time to time, and the Company's ratios of earnings to fixed
charges and earnings to combined fixed charges and preference dividends, see
"Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preference Dividends" herein and TEC 's Consolidated Statements of Operations,
Consolidated Balance Sheets and Consolidated Statements of Cash Flows in TEC 's
Annual Report on Form 10-K and other documents incorporated herein by
reference, including "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in TEC 's Annual Report on Form
10-K for the year ended December 31, 1995 and in TEL's Quarterly Report on Form
10-Q for the quarter ended June 30, 1996.
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
regulations will not, in the future, adversely affect the Company's
consolidated results of operations, cash flows or financial position. Pollution
and similar environmental risks generally are not fully insurable.
Risks of International Operations. The Company derives substantially all of its
consolidated revenues from international operations. Risks inherent in
international operations include loss of revenue, property and equipment from
such hazards as expropriation, nationalization, war, insurrection and other
political risks; trade protection measures; risks of increases in taxes and
governmental royalties; and renegotiation of contracts with governmental
entities; as well as changes in laws and policies governing operations of other
companies. Other risks inherent in international operations are the possibility
of realizing economic currency exchange losses when transactions are completed
<PAGE>
in currencies other than United States dollars and the Company's ability to
freely repatriate its earnings under existing exchange control laws.
Certain Factors Relating to Colombia. The Company is a participant in
significant oil and gas discoveries located in the Llanos Basin in the
foothills of the Andes Mountains, approximately 160 kilometers (100 miles)
northeast of Bogota, Colombia. The Company owns interests in three contiguous
areas known as the Santiago de las Atalayas ("SDLA"), Tauramena and Rio
Chitamena contract areas. Well results to date indicate that significant oil
and gas deposits lie across the SDLA, Tauramena and Rio Chitamena contract
areas (the "Cusiana Field"), and within the SDLA contract area (the "Cupiagua
Field").
Largely due to complex geology, drilling of wells in the Cusiana and
Cupiagua fields has been comparatively difficult, lengthy in duration and
expensive. The Company believes that considerable progress has been achieved in
reducing the time and expenditures required to drill and complete wells in the
Cusiana and Cupiagua fields based on experience gained from initial wells
drilled. Although there can be no assurance, the Company believes that the
experience gained in the area to date will allow the operator to continue to
reduce the time and expenditures required to drill and complete wells in the
area. However, because the Company is not the operator of these contract areas,
the Company does not control the timing or manner of these operations.
Full development of reserves in the Cusiana and Cupiagua fields will more
than a year and require additional drilling and extensive production
facilities, which in turn will require significant additional capital
expenditures, the ultimate amount of which cannot be predicted. Pipelines
connect the major producing fields in Colombia to export facilities and to
refineries. These pipelines are in the process of being upgraded and expanded
to accommodate production from the Cusiana and Cupiagua fields.
Guerilla activity in Colombia has from time to time disrupted the
operation of oil and gas projects and increased costs. Although the Colombian
government, the Company and its partners have taken steps to improve security
and improve relations with the local population, there can be no assurance that
attempts to reduce or prevent guerrilla activity will be successful or that
such activity will not disrupt operations in the future.
Numerous Colombian government officials, including the President of
Colombia, are the subjects of investigations and allegations that claim they
have accepted illegal campaign contributions. These circumstances have led to
speculation as to whether these officials will remain in office. The President
of Colombia has stated that any such illicit contributions were made without
his knowledge. In response to the allegations, the leadership of the opposition
Conservative Party withdrew its support of the Government and certain cabinet
ministers and ambassadors and a high ranking military officer resigned. Any
changes in the holders of significant government offices could have adverse
consequences on the Company's relationship with the Colombian national oil
company and the Colombian government's ability to control guerilla activities,
and could exacerbate the factors relating to foreign operations discussed
above. Colombia is also among 31 nations whose progress in stemming the
production and transit of illegal drugs is subject to annual certification by
<PAGE>
the President of the United States. In March 1996, the President of the United
States announced that Colombia would neither be certified nor granted a
national interest waiver. The consequences of the failure to receive
certification generally include the following: all bilateral aid, except anti-
narcotics and humanitarian aid, has been or will be suspended; the Export-
Import Bank of the United States ("EXIM") and the Overseas Private Investment
Corporation will not approve financing for new projects in Colombia, although
currently approved EXIM financings are not expected to be affected; U.S.
representatives at multilateral lending institutions will be required to vote
against all loan requests from Colombia, although such votes will not
constitute vetoes; and the President of the United States and Congress retain
the right to apply future trade sanctions. Each of these consequences of the
failure to receive such certification could result in adverse economic
consequences in Colombia and could further heighten the political and economic
risks associated with the Company's operations in Colombia.
Certain Factors Relating to Malaysia-Thailand. The Company is a partner in a
significant gas exploration project located in the upper Malay Basin in the
Gulf of Thailand approximately 450 kilometers northeast of Kuala Lumpur and 750
kilometers south of Bangkok. The Company is a contractor under a production
sharing contract covering Block A-18 of the Malaysia-Thailand Joint Development
Area. Test results for the initial exploratory wells indicate that significant
gas deposits lie under the block.
Development of gas production is in the early planning stages but is
expected to take several years and require the drilling of additional wells and
the installation of production facilities, which will require significant
additional capital expenditures, the ultimate amount of which cannot be
predicted. Pipelines will also be required to be connected between Block A-18
and ultimate markets. The terms on which any gas produced from the Company's
contract area in Malaysia-Thailand may be sold may be adversely affected by the
present monopoly gas purchase and transportation conditions in both Thailand
and Malaysia, including the Thai national oil company's monopoly in
transportation within Thailand and its territorial waters.
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>
THE PLAN
The following questions and answers explain and constitute the Triton
Energy Limited Dividend Reinvestment and Stock Purchase Plan.
PURPOSE
1. What is the purpose of the Plan?
The purpose of the Plan is to provide holders of TEL's Ordinary
Shares and Preference Shares and other interested investors with a
convenient and economical method to purchase Ordinary Shares and to
reinvest all or a portion of their cash dividends in Ordinary Shares,
although the Company does not expect to pay dividends on its Ordinary
Shares. In addition, the Plan will provide the Company with a cost-
efficient and flexible mechanism to raise equity capital for the
purposes outlined in the section of this Prospectus entitled "Use of
Proceeds" through sales of Ordinary Shares under the Plan. Whether
significant additional capital is raised may be affected, in part, by
the Company's decision to waive the limitations applicable to optional
cash investments. See Question 13 regarding the Company's criteria for
granting a Request for Waiver.
HOLDERS OF ORDINARY SHARES ARE CAUTIONED THAT THE EXISTENCE OF THE PLAN IN
NO WAY IMPLIES THAT THE COMPANY WILL MODIFY ITS CURRENT POLICY OF NOT PAYING
DIVIDENDS.
PARTICIPATION OPTIONS
2. What options are available under the Plan?
Registered holders or beneficial owners of Ordinary Shares or
Preference Shares (including the holders of 5% Preference Shares) of
TEL (each a "Participant") and other interested investors may elect to
participate in the Plan. Participants may make optional cash
investments to purchase Ordinary Shares, subject to a minimum
investment of $100 and a maximum investment of $10,000 per month.
Interested investors that are not shareholders of the Company may make
an initial optional cash investment in Ordinary Shares of not less than
$5,000 and not more than $10,000. In certain instances, however, TEL
may permit greater optional cash investments. See Question 12 regarding
optional cash investments and Question 13 regarding a Request for
Waiver. Participants may also have cash dividends, if any, on all or a
portion of their shares which are registered and are held by the Plan
automatically reinvested in Ordinary Shares.
3. What are the benefits and restrictions of the Plan?
Benefits
<PAGE>
-- Eligible shareholders may purchase Ordinary Shares pursuant to
optional cash investments of not less than $100 and not more than
$10,000 (except with the consent of the Company) in any month.
Optional cash investments may be made occasionally or at regular
intervals, as each Participant desires. The Plan provides
Participants the opportunity to automatically reinvest cash
dividends, if any, on all or a portion of their Ordinary Shares or
Preference Shares in Ordinary Shares. Participants may make
optional cash investments even if dividends on their shares, if
any, are not being reinvested under the Plan.
-- Persons not presently shareholders of the Company may become
Participants by making an initial cash investment of not less than
$5,000 and not more than $10,000 (except with the consent of the
Company) to purchase Ordinary Shares under the Plan.
-- Ordinary Shares purchased directly from the Company under the Plan
will be issued initially at a 3% discount to the market price
without payment of brokerage commissions; such discount may be
decreased at the sole discretion of the Company at any time.
-- Participants will avoid the need for safekeeping of certificates
for Ordinary Shares credited to their Plan accounts and may submit
for safekeeping certificates held by them and registered in their
name. See Questions 15 and 16.
-- Participants that are registered holders may direct the
Administrator to sell or transfer all or a portion of their shares
held in the Plan. See Question 17.
-- Periodic statements reflecting all current activity in Plan
accounts, including purchases, sales and latest balances, will
simplify recordkeeping for registered holders. See Question 18.
Restrictions
-- Participants may not be able to depend on the availability of a
market discount regarding shares acquired under the Plan and
optional investments may be subject to the trading price for the
Ordinary Shares satisfying a minimum price condition. Initially, a
3% discount will be established for the purchase of shares
directly from the Company, and the establishment of such discount
will not insure the availability of a discount or the same
discount in future months. Each month, the Company may lower or
eliminate the discount or set any minimum price condition without
prior notice to Participants. In addition, although the Company
intends to issue shares directly in connection with the Plan, the
Company may also, without prior notice to Participants, change its
determination as to whether Ordinary Shares will be purchased by
the Administrator directly from the Company or in the open market
or in privately negotiated transactions from third parties
(although the Company may not effect such a change more than once
in any three month period). See Question 13.
<PAGE>
-- Participants will not know the actual number of shares purchased
under the Plan until after the Investment Date. See Question 11
regarding the timing of the purchase of shares.
-- The purchase price per share will be an average price and,
therefore, may exceed the price at which shares are trading on the
Investment Date when the shares are issued. See Questions 11 and
12 regarding the purchase price of the shares and Question 13
regarding the establishment of a minimum price condition.
-- Execution of sales of shares held in the Plan may be subject to
delay. See Questions 12 and 17.
-- No interest will be paid on funds held by the Company pending
reinvestment or investment. See Questions 12 and 14.
-- Shares deposited in a Plan account may not be pledged until the
shares are withdrawn from the Plan. See Question 26.
4. Who will administer the Plan?
The Plan will be administered by ______________ (the
"Administrator"), or such successor administrator as TEL may designate
(the "Administrator"). The Administrator acts as agent for
Participants, keeps records of the accounts of Participants, sends
regular account statements to Participants, and performs other duties
relating to the Plan. Shares purchased for each Participant under the
Plan will be held by the Administrator and will be registered in the
name of such Participant, unless and until a Participant requests that
a stock certificate for all or part of such shares be issued, as more
fully described in Question 15. Correspondence with the Administrator
should be sent to:
________________________________
________________________________
________________________________
________________________________
or call: _________________________
PARTICIPATION
5. Who is eligible to participate?
A "registered holder" (which means a shareholder whose Ordinary
Shares or Preference Shares are registered in the stock transfer books
of TEL in his or her name) or a "beneficial owner" (which means a
shareholder whose Ordinary Shares or Preference Shares, as the case may
be, are registered in a name other than his or her name, for example,
<PAGE>
in the name of a broker, bank, or other nominee), may participate in
the Plan. A registered holder may participate in the Plan directly; a
beneficial owner must either become a registered holder by having such
shares transferred into his or her name or by making arrangements with
his or her broker, bank or other nominee to participate in the Plan on
the Participant's behalf. In addition, an interested investor that is
not a shareholder may participate in the Plan by making an initial
optional cash investment in Ordinary Shares of not less than $5,000 or
more than $10,000 unless granted a Request for Waiver (in which case
such initial investment may exceed $10,000). See Question 6 regarding
enrollment.
The right to participate in the Plan is not transferable to another
person apart from a transfer of the underlying shares. TEL reserves the
right to exclude from participation in the Plan persons who utilize the
Plan to engage in short-term trading activities that cause aberrations
in the trading volume of the Ordinary Shares.
Participants residing in jurisdictions in which their participation
in the Plan would be unlawful will not be eligible to participate in
the Plan.
ENROLLMENT
6. How does an eligible holder of Ordinary Shares, Preference Shares or
any other interested investor enroll in the Plan and become a
Participant?
Each eligible registered holder may enroll in the Plan and become a
Participant by completing and signing an Authorization Card (enclosed
herein) and returning it to the Administrator at the address set forth
in Question 4. An Authorization Card may also be obtained at any time
upon request from the Administrator at the same address. If shares are
registered in more than one name (e.g., joint tenants, trustees), all
registered holders of such shares must sign the Authorization Card
exactly as their names appear on the account registration.
Eligible beneficial owners must instruct their brokers, banks or
other nominees in whose name their shares are held to participate in
the Plan on their behalf. If a broker, bank or other nominee holds
shares of beneficial owners through a securities depository, such
broker, bank or other nominee may also be required to provide a Broker
and Nominee Form (a "B/N Form") to the Administrator in order to
participate in the optional cash investment portion of the Plan. See
Question 12.
An interested investor who is not presently a shareholder of the
Company, but desires to become a Participant by making an initial
investment in Ordinary Shares, may join the Plan by signing an
Authorization Card and forwarding it, together with such initial
investment, to the Administrator at the address set forth in Question
4. See Question 12 regarding initial optional cash investments.
7. What does the Authorization Card provide?
<PAGE>
During those times when the Company is not paying a dividend, the
Authorization Card will relate solely to optional cash investments to
be made for purchase of additional shares and will be called
"Authorization Card for Optional Cash Investments". Such Authorization
Card will appoint the Administrator as agent for the Participant and
direct the Administrator to apply the optional cash investment
transmitted therewith as well as optional cash investments subsequently
submitted to the purchase on such Participant's behalf of full and
fractional Ordinary Shares in accordance with the Plan.
During those times when the Company is paying a dividend, the
Authorization Card, which will be called "Authorization Card for
Reinvestment of Dividends and for Optional Cash Investments", will
appoint the Administrator as agent for the Participant and direct the
Company to pay to the Administrator the Participant's cash dividends on
all or a specified number of the Preference Shares and Ordinary Shares
owned by the Participant on the applicable record date and designated
by the Participant to be included in the Plan; and to reinvest, at the
Participant's discretion, cash dividends on whole and fractional
Ordinary Shares that have been credited to the Participant's account
pursuant to dividend reinvestment or optional cash investment that have
been designated to be included in the Plan ("Plan Shares"). The
Authorization Card will also direct the Administrator to purchase
Ordinary Shares with any optional cash investments that the Participant
may elect to make. Cash dividends will continue to be reinvested with
respect to the number of Preference Shares and Ordinary Shares
designated on the Authorization Card and all Plan Shares until the
Participant specified otherwise in writing or terminates participation
in the Plan and until the Plan is terminated.
The Authorization Card for the Reinvestment of Dividends and for
Optional Cash Investments provides for the purchase of Ordinary Shares
through the following investment options:
(1) "Full Dividend Reinvestment"
This option directs the Administrator to invest in accordance with
the Plan all cash dividends on all whole or fractional Preference
Shares and Ordinary Shares then or subsequently registered in the
Participant's name. This option also permits the Participant to
make optional cash investments and directs the Administrator to
apply such investments towards the purchase of Ordinary Shares in
accordance with the Plan.
(2) "Partial Dividend Reinvestment"
This option directs the Administrator to invest in accordance with
the Plan all cash dividends on the specified number of whole or
fractional Preference Shares and Ordinary Shares then registered
in the Participant's name and so designated in the appropriate
space on the Authorization Card. If this option is selected, the
Participant will continue to receive cash dividends in the usual
manner on all Preference Shares and Ordinary Shares that have not
been designated for participation in the Plan. This option also
<PAGE>
permits the Participant to make optional cash investments and
directs the Administrator to apply such investments towards the
purchase of Ordinary Shares in accordance with the Plan.
(3) "Optional Cash Investments Only"
This option permits a Participant to make optional cash
investments and directs the Administrator to apply such
investments towards the purchase of Ordinary Shares in accordance
with the Plan. If this option is selected, unless the Participant
designates that such additional shares for participation in the
Plan, the Participant will continue to receive cash dividends on
all Preference Shares and Ordinary Shares registered in his or her
name in the usual manner, and the Administrator will apply only
optional cash investments received from the Participant towards
the purchase of Ordinary Shares.
Any one of the above three options may be selected. In each case,
cash dividends will be reinvested on all shares designated for
participation in the Plan until the Participant specifies otherwise or
withdraws from the Plan altogether, or until the Plan is terminated.
Any Participant who returns a properly executed Authorization Card to
the Administrator without electing an investment option will be
enrolled as having selected Full Dividend Reinvestment.
The Authorization Card is designed to be used by a shareholder whose
shares are registered in his or her name for the investment of optional
cash payments or for the reinvestment of cash dividends, if any, or
both. In addition, the Authorization Card is designed to be used by a
broker, bank or other nominee as owner of record on behalf of a
beneficial owner for the investment of optional cash payments or for
the reinvestment of dividends, if any, or both.
8. When will participation in the Plan begin?
A Participant who has properly completed and submitted an
Authorization Card may submit an optional cash investment to purchase
shares under the Plan with such Authorization Card at any time.
Thereafter, optional cash investments may be made at any time, but not
more frequently than once each month, through the use of the
appropriate forms sent to Participants with each periodic statement.
Payments received by the Administrator prior to the first day of a
Pricing Period (as defined in Question 11) will be used to purchase
shares on the Investment Date (as defined below) immediately following
such Pricing Period.
If a properly completed Authorization Card requesting reinvestment of
dividends is received by the Administrator on or before the record date
established by the Company's Board of Directors for a particular
Preference Share or Ordinary Share cash dividend, that dividend will be
used to purchase Ordinary Shares for the Participant on the applicable
dividend payment date established by the Company's Board of Directors.
If an Authorization Card is received from a Participant after the
<PAGE>
record date established for a particular dividend, the reinvestment of
dividends will begin on the dividend payment date following the next
dividend record date. For a discussion of the price to Participants of
the Ordinary Shares purchased under the Plan and the limitations on
optional cash investments, see Questions 11 and 13, respectively.
The dates on which optional cash investments are to be invested and
any Preference Share or Ordinary Share dividend payment dates are
herein collectively referred to as the "Investment Dates". For
optional cash investments, the Investment Date will be the first
Trading Day (as defined below) subsequent to the Pricing Period. A
"Trading Day" means a day on which trades in Ordinary Shares are
reported on the New York Stock Exchange (the "NYSE").
The record date for optional cash purchases is the business day
immediately preceding the first day of the Pricing Period to which the
Investment Date relates.
No interest will be paid on optional cash investments or cash
dividends pending investment in Ordinary Shares.
Eligible shareholders and other interested investors may enroll in
the Plan at any time. Once enrolled, a Participant will remain enrolled
until the Participant discontinues participation or until the Company
terminates the Plan. See Question 19 regarding withdrawal from the Plan
and Question 26 regarding termination of the Plan.
PURCHASES
9. When will shares be acquired under the Plan?
If shares are being acquired for the Plan directly from the Company,
dividends and optional cash investments will be reinvested or invested,
as the case may be, on the Investment Date.
If shares are being acquired for the Plan through open market or
privately negotiated transactions, all dividends and all optional cash
investments will be applied to the purchase of Ordinary Shares pursuant
to the Plan as soon as practicable on or after the applicable
Investment Date.
10. What is the source of shares to be purchased under the Plan?
The Company anticipates that optional cash investments and dividends
reinvested through the Plan will be used to purchase shares directly
from TEL, either from treasury or authorized but unissued Ordinary
Shares. The Company may, however, determine instead to purchase shares
on the open market or in privately negotiated transactions from third
parties, or both purchase shares from third parties and issue shares
directly.
11. What will be the price to the Participant of Ordinary Shares purchased
under the Plan?
<PAGE>
The price to Participants of Ordinary Shares purchased directly from
the Company with optional cash payments or with cash dividends will
initially be 97% of the average of the Daily Prices (defined below) of
the Ordinary Shares for the twelve Trading Days ending immediately
preceding the applicable Investment Date, excluding from the average,
in the case of purchases with optional cash investments in excess of
$10,000 in a given month, any Daily Price which does not equal or
exceed any applicable Threshold Price (defined below). The period
encompassing the first twelve Trading Days of each month constitutes
the relevant "Pricing Period" for that particular month. The Daily
Price for a Trading Day shall be the average of the high and low
trading prices of the Ordinary Shares on that day on the NYSE, rounded
to three decimal places.
The Company may, in its sole discretion, establish for any given
Pricing Period a minimum price for the investment of optional cash
payments in excess of $10,000 pursuant to a Request for Waiver (the
"Threshold Price"). Any such Threshold Price will be a stated dollar
amount established by the Company at least three Trading Days prior to
the commencement of each Pricing Period. In addition, the Company may,
at any time in its sole discretion, decrease the discount applicable to
purchasers of Ordinary Shares from the Company. See Question 13.
If the Company exercises its option to purchase Ordinary Shares from
third parties, all shares so purchased by the Administrator will be
acquired as soon as practicable on or after the applicable Investment
Date at a price to the Participant of the weighted average purchase
price for such shares, including brokerage fees and commissions,
computed up to three decimal places, if necessary, paid by the
Administrator for the Ordinary Shares.
12. How are optional cash investments made?
All registered holders, including brokers, banks and nominees with
respect to shares registered in their name on behalf of beneficial
owners that have submitted signed Authorization Cards, are eligible to
make optional cash investments at any time.
A broker, bank or nominee, as holder on behalf of a beneficial owner,
may utilize an Authorization Card for optional cash investments unless
it holds the shares in the name of a securities depository. In that
event, the optional cash investment must be accompanied by a broker and
Nominee Form ("B/N Form").
The B/N Form provides the sole means whereby a broker, bank or other
nominee holding shares on behalf of beneficial owners in the name of a
securities depository may make optional cash investments on behalf of
such beneficial owners. In such case, the broker, bank or other nominee
must use a B/N Form for transmitting optional cash investments on
behalf of the beneficial owners. A B/N Form must be delivered to the
Administrator at the address specified in Question 4 each time that
such broker, bank or other nominee transmits optional cash investments
on behalf of the beneficial owners. B/N Forms will be furnished by the
Administrator upon request.
<PAGE>
Other interested investors that are not shareholders of the Company,
but have submitted Authorization Cards and funds representing their
desired initial investment, are also eligible to make such an initial
investment in Ordinary Shares through an optional cash investment.
The Administrator will apply all optional cash investments for which
good funds are received on or before the first business day before the
Pricing Period to the purchase of Ordinary Shares on the next following
Investment Date, or if shares are acquired on the open market or in
privately negotiated transactions, as soon as practicable on or after
such Investment Date.
No interest will be earned on optional cash investments held pending
investment. The Company suggests therefore that any optional cash
investment a Participant wishes to make be sent so as to reach the
Administrator as close as possible to the first business day preceding
the Pricing Period for the next following Investment Date. Any
questions regarding these dates should be directed to the Administrator
at the address or telephone number set forth in Question 4.
All optional cash investments received by the Administrator after the
close of business on the last business day immediately preceding the
first day of the Pricing Period and before the next succeeding
Investment Date will promptly be returned to the Participant without
interest.
Participants should be aware that since investments under the Plan
are made as of specified dates, one may lose any advantage that
otherwise might be available from being able to select the timing of an
investment. Neither the Company nor the Administrator can assure a
profit or protect against a loss on Ordinary Shares purchased under the
Plan.
All optional cash investments made by check should be made payable to
________ and mailed to the Administrator at the address listed in
Question 4. Other forms of payment, such as wire transfers, may be
made, but only if approved in advance by the Administrator. Inquires
regarding other forms of payments and all other written inquires should
be directed to the Administrator at the address listed in Question 4.
13. What limitations apply to optional cash investments?
Minimum/Maximum Limits. For any Investment Date, optional cash
investments made by shareholders of the Company are subject to a
minimum of $100 and a maximum of $10,000, and optional cash investments
made by interested investors who are not then shareholders of the
Company are subject to a minimum initial investment of $5,000 and a
maximum of $10,000. See Question 9 regarding the determination of
Investment Dates for optional cash investments. Optional cash
investments of less than the allowable monthly minimum amount and that
portion of any optional cash investment that exceeds the allowable
monthly maximum amount will be returned, except as noted below,
promptly to Participants, without interest.
<PAGE>
Request for Waiver. Optional cash investments in excess of $10,000
per month may be made only pursuant to a request for waiver (a "Request
for Waiver") accepted by the Company. Participants who wish to submit
an optional cash investment in excess of $10,000 for any Investment
Date must obtain the prior written approval of the Company and a copy
of such written approval must accompany any such optional cash
investment. A Request for Waiver should be directed to the Company at
( ) - . The Company has sole discretion to grant any approval
for optional cash investments in excess of the allowable maximum
amount. In deciding whether to approve a Request for Waiver, the
Company will consider relevant factors including, but not limited to,
the Company's need for additional funds, the attractiveness of
obtaining such additional funds through the sale of Ordinary Shares as
compared to other sources of funds, the purchase price likely to apply
to any sale of Ordinary Shares, the Participant submitting the request,
the extent and nature of such Participant's prior participation in the
Plan, the number of Ordinary Shares held of record by such Participant
and the aggregate amount of optional cash investments in excess of
$10,000 for which Request for Waiver have been submitted by all
Participants. If Requests for Waiver are submitted for any Investment
Date for an aggregate amount in excess of the amount the Company is
then willing to accept, the Company may honor such requests in order of
receipt, pro rata or by any other method that the Company determines to
be appropriate. Upon granting any Request for Waiver the Company may,
at its sole discretion, reduce the Discount (as defined below) with
respect to that portion of the optional cash investment that exceeds
$10,000,
TEL reserves the right to modify, suspend or terminate participation
in the Plan by otherwise eligible registered holders or beneficial
owners of Ordinary Shares for any reason whatsoever including
elimination of practices that are not consistent with the purposes of
the Plan.
Threshold Price. TEL may establish for any Pricing Period a Threshold
Price applicable to optional cash investments made pursuant to Requests
for Waiver. The Threshold Price will not apply to the entire optional
cash investment made pursuant to a Request for Waiver, but only to that
portion of the optional cash investment that exceeds $10,000 (the
"Excess Amount"). At least three Trading Days prior to the first day of
the applicable Pricing Period, TEL will determine whether to establish
a Threshold Price, and if a Threshold Price is established, its amount,
and will so notify the Administrator. This determination will be made
by TEL in its discretion after a review of current market conditions,
the level of participation in the Plan, and current and projected
capital needs.
If established for any Pricing Period, the Threshold Price will be
stated as a dollar amount that the average of the high and low sale
prices of the TEL on the NYSE for each Trading Day of the relevant
Pricing Period must equal or exceed. In the event that the Threshold
Price is not satisfied for a Trading Day in the Pricing Period, then
that Trading Day will be excluded from the Pricing Period and all
<PAGE>
trading prices for that day will be excluded from the determination of
the purchase price. A day will also be excluded if no trades of
Ordinary Shares are made on the NYSE for that day. Thus, for example,
if the Threshold Price is not satisfied for three of the twelve Trading
Days in a Pricing Period, then the purchase price will be based upon
the remaining nine Trading Days in which the Threshold Price was
satisfied.
In addition, a portion of the Excess Amount will be returned for each
Trading Day of a Pricing Period in which the Threshold Price is not
satisfied or for each day in which no trades of Ordinary Shares are
reported on the NYSE. The returned amount will equal one-twelfth of the
Excess Amount for each Trading Day that the Threshold Price is not
satisfied. Thus, for example, if the Threshold Price is not satisfied
or no such sales are reported for three of the twelve Trading Days in a
Pricing Period, 3/12 (i.e., 25%) of the Excess Amount of such optional
cash investment will be returned to the Participant without interest.
The establishment of the Threshold Price and the possible return of a
portion of the investment applies only to the Excess Amount. Setting a
Threshold Price for a Pricing Period shall not affect the setting of a
Threshold Price for any subsequent Pricing Period. For any particular
month, TEL may waive its right to set a Threshold Price. Neither TEL
nor the Administrator shall be required to provide any written notice
to Participants as to the Threshold Price for any Pricing Period.
Participants may, however, ascertain whether a Threshold Price has been
set or waived for any given Pricing Period by telephoning TEL at
( ) - .
Discount. The discount (the "Discount") applicable to shares
purchased directly from TEL under the Plan initially will be 3%.
However, such discount may be changed, in the sole discretion of the
Company, in accordance with the following procedures. Each month, at
least three Trading Days prior to the first day of the applicable
Pricing Period, TEL may decrease the Discount from the market price
applicable to all purchases of Ordinary Shares made directly from TEL
pursuant to the Plan from 3% to 0% or any percentage in between. Once
established, such Discount will apply uniformly to all purchases of
Ordinary Shares directly from the Company made pursuant to the Plan for
that month, except that the Discount may be decreased with respect to
the portion of shares purchased over $10,000 in connection with an
optional cash investment made pursuant to a Request for Waiver. Any
change in the Discount will be made in TEL's sole discretion after a
review of current market conditions, the level of participation in the
Plan, and current and projected capital needs. Participants may obtain
the Discount applicable to the next Pricing Period by telephoning TEL
at ( ) - . Setting a Discount for a particular month shall not
affect the setting of a Discount for any subsequent month.
14. What if a Participant has more than one account?
For the purpose of the limitations discussed in Question 13, TEL may
aggregate all dividend reinvestments and optional cash investments for
Participants with more than one account using the same social security
<PAGE>
or taxpayer identification number. For Participants unable to supply a
social security or taxpayer identification number, their participation
may be limited by TEL to only one Plan account.
Also for the purpose of such limitations, all Plan accounts that TEL
believes to be under common control or management or to have common
ultimate beneficial ownership may be aggregated. Unless TEL has
determined that reinvestment of dividends and optional cash investments
for each such account would be consistent with the purposes of the
Plan, TEL will have the right to aggregate all such accounts and to
return, without interest, within thirty days of receipt, any amounts in
excess of the investment limitations applicable to a single account
received in respect of all such accounts.
CERTIFICATES
15. Will certificates be issued for share purchases?
All shares purchased pursuant to the Plan will be held in "book
entry" form through accounts maintained by the Administrator. This
service protects against the loss, theft, or destruction of
certificates evidencing shares. Upon written request of a Participant
or upon withdrawal of a Participant from the Plan or upon termination
of the Plan, the Administrator will have certificates issued and
delivered for all full shares credited to that Participant's account.
Certificates will be issued only in the same names as those enrolled in
the Plan. In no event will certificates for fractional shares be
issued. See Questions 16 and 17.
16. May a Participant add Ordinary Shares to his or her account by
transferring share certificates that the Participant possesses?
Any Participant may send to the Plan for safekeeping all Ordinary
Share certificates which such Participant holds. The safekeeping of
shares offers the advantage of protection against loss, theft or
destruction of certificates as well as convenience, if and when shares
are sold through the Plan. All shares represented by such certificates
will be kept for safekeeping in "book entry" form and combined with any
full and fractional shares then held by the Plan for the Participant.
To deposit certificates for safekeeping under the Plan, a Participant
must submit a letter of transmittal, which will be provided by the
Administrator upon request. Stock certificates and the letter of
transmittal as well as all written inquiries about the safekeeping
service should be directed to the Administrator at the address listed
in Question 4.
Shares deposited for safekeeping may be withdrawn by the Participant
by submitting a written request to the Administrator.
<PAGE>
SALE OF SHARES
17. Can Participants sell shares held under the Plan?
Participants may request that all or a portion of the shares held in
their accounts by the Plan (including shares held for safekeeping) be
sold. Following receipt of written instructions from a Participant, the
Administrator will sell, through an independent broker or institution,
those shares and will remit a check for the proceeds of such sale, less
applicable brokerage commissions, service charges and any taxes. Prior
written instructions from the Participant must be received at least 24
hours preceding the sale. Shares will be sold at least once per week by
the Plan at then current market prices in transactions carried out
through one or more brokerage firms. This procedure for selling shares
may be particularly attractive to holders of small amounts of Ordinary
Shares because the Plan can combine odd lots and small numbers of
shares into larger blocks to be sold, and thereby take advantage of
lower brokerage costs that otherwise might not be available to
individual Participants in the sale of their shares.
REPORTS
18. What reports will be sent to Participants in the Plan?
Unless a Participant participates in the Plan through a broker, bank
or nominee, each Participant will receive from the Administrator a
detailed statement of the Participant's account following each dividend
payment and account transaction. These detailed statements will show
total cash dividends received, total optional cash investments
received, total shares purchased (including fractional shares), price
paid per share, and total shares held in the Plan. These statements
should be retained by the Participant to determine the tax cost basis
for shares purchased pursuant to the Plan. Any Participant that
participates in the Plan through a broker, bank or nominee, should
contact such party for such a statement.
WITHDRAWAL
19. How may Participants withdraw from the Plan?
Except as set forth below, a Participant may terminate enrollment in
the Plan by giving written notice to the Administrator no later than
two days prior to the first day of the next Pricing Period, and
thereafter all cash dividends on shares owned by such Participant will
be sent to the Participant. See Question 17. In the event that a
purchase of Ordinary Shares on behalf of a Participant pursuant to the
Plan is pending, such Participant may not terminate enrollment until
the close of the Pricing Period. Any fractional shares held in the
Plan at the time of termination will be converted to cash on the basis
of the then current market price of the Ordinary Shares.
<PAGE>
TAXES
20. What are the federal income tax consequences of participating in the
Plan?
For federal income tax purposes, Participants will be treated as
having received a distribution from the Company upon the purchase of
shares pursuant to the Plan with an optional cash investment in an amount
equal to the excess, if any, of the fair market value of the shares
acquired on the Investment Date over the optional cash investment. Any
such deemed distribution will be treated as a taxable dividend to the
extent attributable to current or accumulated earnings and profits of the
Company. The purchased shares will have a tax basis equal to the amount
of the optional cash investment plus the amount of the deemed
distribution, if any, which is treated as a dividend. The fair market
value of shares acquired on an Investment Date is likely to differ from
the optional cash investment.
Additionally, Participants will be treated as having received a
distribution from the Company equal to the fair market value on the
Investment Date of the shares acquired with reinvested dividends pursuant
to the Plan. Such distribution will be treated as a dividend to the
extent attributable to current or accumulated earnings and profits of the
Company. Any excess will first be treated as a tax-free return of
capital, causing a reduction in the basis of existing shares, and the
balance will be treated as capital gain recognized on a sale or exchange.
A Participant's tax basis in the dividend shares will equal the fair
market value of such shares on the Investment Date.
When a Participant receives certificates for whole shares credited to
the Participant's account under the Plan, the Participant will not realize
any taxable income. However, a Participant that receives a cash adjustment
for a fraction of a share may realize a gain or loss with respect to such
fraction. A gain or loss may also be realized by the Participant whenever
whole shares are sold, either pursuant to the Participant's request, upon
withdrawal from the Plan or after withdrawal from the Plan. The amount of
such gain or loss will be the difference between the amount that the
Participant realizes for the shares or fraction of a share and the tax
basis of the Participant in the shares.
A Participant's holding period for shares acquired pursuant to the
Plan will begin on the day following the Investment Date.
In the case of corporate shareholders, dividends may be eligible for
the dividends-received tax deduction.
The foregoing is only a summary of the federal income tax
consequences of participation in the Plan and does not constitute tax
advice. This summary does not reflect every possible outcome that could
result from participation in the Plan and, therefore, Participants are
advised to consult their own tax advisors with respect to the tax
consequences applicable to their particular situation.
<PAGE>
OTHER PROVISIONS
21. What happens if a Participant sells or transfers shares or acquires
additional shares?
If a Participant has elected to have dividends automatically
reinvested in the Plan and subsequently sells or transfers all or any
part of the shares registered in the Participant's name, automatic
reinvestment will continue as long as shares are registered in the name
of the Participant or held for the Participant by the Administrator or
until termination of enrollment. Similarly, if a Participant has
elected the "Full Dividend Reinvestment" option under the Plan and
subsequently acquires additional shares registered in the Participant's
name, dividends paid on such shares will automatically be reinvested
until termination of enrollment. If, however, a Participant has elected
the "Partial Dividend Reinvestment" option and subsequently acquires
additional shares that are registered in the Participant's name,
dividends paid on such shares will not be automatically reinvested
under the Plan. See Question 7. Participants may, however, change their
dividend reinvestment elections by submitting new Authorization Cards.
22. How will a Participant's shares be voted?
For any meeting of shareholders, each Participant will receive proxy
materials in order to vote all shares held by the Plan for the
Participant's account. All shares will be voted as designated by the
Participant or may be voted in person at the meeting of shareholders.
23. Who pays the expenses of the Plan?
In the case of optional cash investments, Participants will have to
pay their pro rata share of any brokerage fees or commissions on
Ordinary Shares purchased for their account in open market or in
privately negotiated transactions, which sums will first be deducted
before determining the number of shares to be purchased. Participants
will not incur brokerage commissions or service charges in connection
with the reinvestment of dividends to purchase Ordinary Shares, or in
connection with optional cash investments in which shares are purchased
directly from the Company. However, the Administrator will charge an
administrative fee for optional cash investments and on sales of shares
made pursuant to the Plan. This fee will vary depending on whether the
transaction is initiated by a registered holder or through a broker,
bank or other nominee that holds shares through a securities
depository. These fees, as well as any related brokerage commissions
and applicable stock transfer taxes must be paid to the Administrator
at the time of the transaction, and will be deducted from the funds
received by the Administrator in the case of optional cash investments
and from the proceeds, in the case of sale of shares. The Administrator
may also charge Participants for additional services not provided under
the Plan or for other specified charges. Any of such administrative
fees may be changed by the Administrator at any time, without notice to
<PAGE>
Participants. Participants may obtain a current listing of all
applicable administrative fees by contacting the Administrator at the
address or telephone number listed in Question 4 above. Brokers or
nominees that participate on behalf of beneficial owners for whom they
are holding shares may also charge such beneficial owners fees in
connection with such participation, for which neither the Administrator
nor the Company will be responsible.
24. What are the responsibilities of TEL or the Administrator under the
Plan?
Neither TEL nor the Administrator will be liable for any act done in
good faith or for any good faith omission to act, including, without
limitation, any claims of liability arising out of a failure to
terminate a Participant's account upon such Participant's death or
adjudication of incompetence prior to the receipt of notice in writing
of such death or adjudication of incompetence, the prices at which
shares are purchased for the Participant's account, the times when
purchases are made or fluctuations in the market value of the Ordinary
Shares. Neither TEL nor the Administrator has any duties,
responsibilities or liabilities except those expressly set forth in the
Plan.
The Participant should recognize that the Company cannot assure a
profit or protect against a loss on the shares purchased by a
Participant under the Plan.
25. What happens if TEL issues a stock dividend or declares a stock split?
Any Ordinary Shares distributed by TEL as a result of a stock
dividend or a stock split on shares held under the Plan for a
Participant will be credited to the Participant's account.
26. If TEL has a rights offering related to the Ordinary Shares, how will a
Participant's entitlement be computed?
A participant's entitlement in a rights offering related to the
Ordinary Shares will be based upon the number of whole shares credited
to the Participant's account. Rights based on a fraction of a share
credited to a Participant's Plan account will be sold for that account
and the net proceeds will be invested as an optional cash payment on
the next Investment Date. In the event of a rights offering,
transaction processing may be curtailed or suspended by the
Administrator for a short period of time following the record date for
such action to permit the Administrator to calculate the rights
allocable to each account.
27. May shares in a Participant's account be pledged?
No shares credited to a Participant's account may be pledged and any
such purported pledge will be void. If a Participant wishes to pledge
shares, those shares must be withdrawn from the Plan.
28. May a Participant transfer all or a part of the Participant's shares
held in the Plan to another person?
<PAGE>
A Participant may transfer ownership of all or part of his or her
shares held in the Plan through gift, private sale or otherwise, by
mailing to the Administrator at the address in Question 4 a properly
executed stock assignment, along with a letter with specific
instructions regarding the transfer and both an Authorization Card and
a Form W-9 (Certification of Taxpayer Identification Number) completed
by the transferee. Requests for transfer of shares held in the plan are
subject to the same requirements as the transfer of Ordinary Share
certificates, including the requirement of a medallion signature
guarantee on the stock assignment. The Administrator will provide
Participants with the appropriate transfer forms upon request, and will
deliver a copy of this Prospectus to the transferee upon receipt of the
appropriate transfer forms from the Participant. If any stock
certificates bearing a restrictive legend are contained in the
Participant's Plan account, the Administrator will comply with the
provisions of such restrictive legend before effecting a sale or
transfer of such restricted shares.
A Participant may also transfer all or a portion of his or her shares
into an account established for another person within the Plan. In
order to effect such a "book-to-book" transfer, the transferee must
complete an Authorization Card to open a new account within the Plan.
(See Question 7). The Authorization Card should be sent to the
Administrator along with a written request to effect the "book-to-book"
transfer indicating the number of shares to be transferred to the new
account.
29. May the Plan be changed or terminated?
While the Plan is intended to continue indefinitely, TEL reserves the
right to amend, modify, suspend or terminate the Plan at any time.
Participants will be notified in writing of any modifications made to
the Plan.
PLAN OF DISTRIBUTION AND UNDERWRITERS
Pursuant to the Plan, TEL may be requested to approve optional cash
investments in excess of the allowable maximum amounts pursuant to Requests for
Waiver on behalf of Participants that may be engaged in the securities
business. In deciding whether to approve such a request, TEL will consider
relevant factors including, but not limited to, whether the Plan is then
acquiring newly issued Ordinary Shares or acquiring shares through open market
purchases or privately negotiated transactions, the Company's need for
additional funds, the attractiveness of obtaining such funds by the sale of
Ordinary Shares under the Plan in comparison to other sources of funds, the
purchase price likely to apply to any sale of Ordinary Shares, the Participant
submitting the request, including the extent and nature of such Participant's
prior participation in the Plan and the number of Ordinary Shares held of
record by such Participant and the aggregate number of Requests for Waiver that
have been submitted by all Participants. Persons who acquire Ordinary Shares
through the Plan and resell them shortly after acquiring them, including
<PAGE>
coverage of short positions, under certain circumstances, may be participating
in a distribution of securities that would require compliance with Rule 10b-6
under the Exchange Act and may be considered to be underwriters within the
meaning of the Securities Act. TEL will not extend to any such person any
rights or privileges other than those to which it would be entitled as a
Participant, nor will TEL enter into any agreement with any such person
regarding such person's purchase of such shares or any resale or distribution
thereof. TEL may, however, approve requests for optional cash investments by
such persons in excess of allowable maximum limitations. If such requests are
submitted for any Investment Date for an aggregate amount in excess of the
amount TEL is willing to accept, TEL may honor such requests in order of
receipt, pro rata or by any other method which TEL determines to be
appropriate.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Ordinary Shares
will be passed upon by W.S. Walker & Company, Grand Cayman, Cayman Islands.
EXPERTS
The consolidated financial statements of TEC as of and for the year ended
December 31, 1995, the seven months ended December 31, 1994 and the years ended
May 31, 1994 and 1993, incorporated herein by reference to TEC 's Annual Report
on Form 10-K for the year ended December 31, 1995, have been so incorporated in
reliance upon the report of Price Waterhouse LLP, 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
Energy Corporation 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.
<PAGE>
No persons have been authorized to give any information or to make any
representations other than those contained or incorporated in this Prospectus
and, if given or made, such information or representations must not be relied
upon as having been authorized. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities other than those to
which it relates, or an offer or solicitation with respect to those securities
to which it relates to any persons in any jurisdiction where such offer or
solicitation would be unlawful. The delivery of this Prospectus at any time
does not imply that the information contained or incorporated herein at its
date is correct as of any time subsequent to its date.
TABLE OF CONTENTS
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . 46
Incorporation of Certain Documents by Reference . . . . . . . . . . . . 46
Enforceability of Civil Liabilities Against Foreign Persons . . . . . . 47
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
The Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Plan of Distribution and Underwriters . . . . . . . . . . . . . . . . . 69
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
<PAGE>
Triton Energy Limited
Dividend Reinvestment
and Stock Purchase Plan
_________________________
PROSPECTUS
_________________________
________, 1996
<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 . . . . . . . . . . . $68,966
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 . . . . . . . . . . . . . . . $ 58,966
=========
<FN>
</TABLE>
Item 15. Indemnification of Directors and Officers.
TEL is a Cayman Islands company. Article XXXIII of TEL's Articles of
Association contains provisions with respect to indemnification of TEL's
officers and directors. Such provisions provide that TEL shall indemnify, in
accordance with and to the full extent now or hereafter permitted by law, any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, an
action by or in the right of TEL), by reason of his acting as a director,
officer, employee or agent of, or his acting in any other capacity for or on
behalf of, TEL, against any liability or expense actually and reasonably
incurred by such person in respect thereof. TEL shall also advance the expenses
of defending any such act, suit or proceeding in accordance with and to the
full extent now or hereafter permitted by law. Such indemnification and
advancement of expenses are not exclusive of any other right to indemnification
or advancement of expenses provided by law or otherwise. The Articles of
Association also provide that except under certain circumstances, directors of
TEL shall not be personally liable to TEL or its shareholders for monetary
damages for breach of fiduciary duties as a director.
The Companies Law (1995 Revision) of the Cayman Islands does not set out
any specific restrictions on the ability of a company to indemnify officers or
directors. However, the application of basic principles and certain
Commonwealth case law which is likely to be persuasive in the Cayman Islands,
would indicate that indemnification is generally permissible except in the
event that there had been fraud or wilful default on the part of the officer or
director or reckless disregard of his duties and obligations to TEL.
II-2
<PAGE>
TEC is a Delaware corporation. Reference is made to Section 102(b)(7) of
the Delaware General Corporation Law (the "DGCL"), which enables a corporation
in its original certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Reference also is made to Section 145 of the DGCL, which provides that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such officer, director, employee or agent acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the corporation's best interests and, for criminal proceedings, had no
reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses that
such officer or director actually and reasonably incurred.
The Certificate of Incorporation of TEC provides that except under
certain circumstances, directors of TEC shall not be personally liable to TEC
or its stockholders for monetary damages for breach of fiduciary duties as a
director. Article III of the By-laws of TEC provides for indemnification of
the officers and directors of TEC to the full extent permitted by applicable
law.
Item 16. Exhibits.
1.1 - Form of Underwriting Agreement (TEC Debt Securities and Warrants
to Purchase TEC Debt Securities).
1.2 - Form of Underwriting Agreement (TEL Debt Securities and Warrants
to Purchase TEL Debt Securities)
II-3
<PAGE>
1.3 - Form of Underwriting Agreement (Equity Securities and Warrants
to Purchase Equity Securities).
4.1 - Form of TEC Debt Securities.
4.2 - Form of TEL Debt Securities.
4.3* - Form of TEC Senior Debt Indenture by and among TEC, TEL, as
guarantor, and The Chase Manhattan Bank, as Trustee.
4.4* - Form of TEC Senior Subordinated Debt Indenture by and among TEC,
TEL, as guarantor, and United States Trust Company of New York,
as Trustee.
4.5 - Form of TEL Senior Debt Indenture between TEL and The Chase
Manhattan Bank, as Trustee.
4.6 - Form of TEL Senior Subordinated Debt Indenture between TEL and
United States Trust Company of New York, as Trustee.
4.7 - Form of TEL Subordinated Debt Indenture between TEL and The
Chase Manhattan Bank, as Trustee.
4.8 - Form of Warrant Agreement for Preference Shares and Ordinary
Shares (including form of Warrant Certificate).
4.9* - Form of Warrant Agreement for TEC Debt Securities (including
form of Warrant Certificate).
4.10 - Form of Warrant Agreement for TEL Debt Securities (including
form of Warrant Certificate).
5.1* - Opinion of Simpson Thacher & Bartlett.
5.2* - Opinion of W.S. Walker & Company.
12.1 - Computation of Ratio of Earnings to Fixed Charges (incorporated
by reference to Exhibit 12.1 to TEL's Quarterly Report on Form
10-Q for the Quarter ended June 30, 1996 (the "Form 10-Q").
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Dividends (incorporated by reference to Exhibit 12.2
to the Form 10-Q).
23.1 - Consent of Price Waterhouse LLP.
23.2* - Consent of Simpson Thacher & Bartlett (included in Exhibit 5.1).
23.3* - Consent of W.S. Walker & Company (included in Exhibit 5.2).
23.4 - Consent of DeGolyer and MacNaughton, independent petroleum
engineers.
24.1 - Powers of Attorney of Board of Directors of TEL and TEC.
II-4
<PAGE>
25.1 - Statement of eligibility of The Chase Manhattan Bank as Trustee
under the TEC Senior Debt Indenture.
25.2 - Statement of eligibility of The Chase Manhattan Bank as Trustee
under the TEL Senior Debt Indenture.
25.3 - Statement of eligibility of The Chase Manhattan Bank as Trustee
under the TEL Subordinated Debt Indenture.
25.4 - Statement of eligibility of United States Trust Company of New
York as Trustee under the TEC Senior Subordinated Debt
Indenture.
25.5 - Statement of eligibility of United States Trust Company of New
York as Trustee under the TEL Senior Subordinated Debt
Indenture.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the from of prospectus filed with the Commission
pursuant to Rule 462(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraph (1)(i) and (1)(ii) above do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrants pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934, as
II-5
<PAGE>
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 registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the Triton
Energy Limited annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions set forth in response to Item 15, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by 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
registrants will, unless in the opinion of their 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.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Dallas, State of Texas, on August 30, 1996.
TRITON ENERGY LIMITED
By: /s/ Robert B. Holland, III
---------------------------
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------------- -------- --------
* President, Chief August 30, 1996
---------------- Executive
(Thomas G. Finck) Officer,
Chairman of the
Board
* Senior Vice August 30, 1996
---------------- President and
(Peter Rugg) Chief Financial
Officer
(Principal
Financial and
Accounting
Officer)
* Director August 30, 1996
----------------
(Ernest E. Cook)
II-7
<PAGE>
* Director August 30, 1996
----------------
(Ray H. Eubank)
* Director August 30, 1996
----------------
(Jesse E. Hendricks)
* Director August 30, 1996
----------------
(John P. Lewis)
* Director August 30, 1996
----------------
(Michael E. McMahon)
* Director August 30, 1996
----------------
(Sheldon R. Erikson)
* Director August 30, 1996
----------------
(Wellslake D. Morse, Jr.)
* Director August 30, 1996
----------------
(Edwin D. Williamson)
* Director August 30, 1996
----------------
(Fitzgerald S. Hudson)
Director
----------------
(John R. Huff)
*By:/s/ Robert B. Holland, III August 30, 1996
------------------------
(Robert B. Holland, III)
as attorney in fact
II-8
<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 these
Post-Effective Amendments to its Registration Statements to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Dallas,
State of Texas, on August 30, 1996.
TRITON ENERGY CORPORATION
By: /s/ Robert B. Holland, III
-------------------------------
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------- ----- ----
* President, Chief Executive August 30, 1996
- ------------------------------- Officer, Chairman of the Board
(Thomas G. Finck)
* Vice President (Principal August 30, 1996
- ------------------------------- Financial and Accounting
(Peter Rugg) Officer) and Director
/s/ Robert B. Holland, III Vice President, Secretary and August 30, 1996
- ------------------------------- Director
(Robert B. Holland, III)
*By:/S/ Robert B. Holland, III August 30, 1996
- -------------------------------
(Robert B. Holland, III)
as attorney in fact
II-9
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description of Exhibits Pages
1.1 - Form of Underwriting Agreement (TEC Debt Securities
and Warrants to Purchase TEC Debt Securities).
1.2 - Form of Underwriting Agreement (TEL Debt Securities
and Warrants to Purchase TEL Debt Securities)
1.3 - Form of Underwriting Agreement (Equity Securities
and Warrants to Purchase Equity Securities).
4.1 - Form of TEC Debt Securities.
4.2 - Form of TEL Debt Securities
4.3* - Form of TEC Senior Debt Indenture by and among TEC,
TEL, as guarantor, and The Chase Manhattan Bank, as
Trustee.
4.4* - Form of TEC Senior Subordinated Debt Indenture by
and among TEC, TEL, as guarantor, and United States
Trust Company of New York, as Trustee.
4.5 - Form of TEL Senior Debt Indenture between TEL and
The Chase Manhattan Bank, as Trustee
4.6 - Form of TEL Senior Subordinated Debt Indenture
between TEL and United States Trust Company of New
York, as Trustee
4.7 - Form of TEL Subordinated Debt Indenture between TEL
and The Chase Manhattan Bank, as Trustee
4.8 - Form of Warrant Agreement for Preference Shares and
Ordinary Shares (including form of Warrant
Certificate).
4.9* - Form of Warrant Agreement for TEC Debt Securities
(including form of Warrant Certificate).
4.10 - Form of Warrant Agreement for TEL Debt Securities
(including form of Warrant Certificate).
5.1* - Opinion of Simpson Thacher & Bartlett.
5.2* - Opinion of W.S. Walker & Company.
II-10
<PAGE>
12.1 - Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to Exhibit 12.1 to TEL's
Quarterly Report on Form 10-Q for the Quarter ended
June 30, 1996 (the "Form 10-Q").
12.2 - Computation of Ratio of Earnings to Combined Fixed
Charges and Preferred Dividends (incorporated by
reference to Exhibit 12.2 to the Form 10-Q).
23.1 - Consent of Price Waterhouse LLP.
23.2* - Consent of Simpson Thacher & Bartlett (included in
Exhibit 5.1).
23.3* - Consent of W.S. Walker & Company (included in
Exhibit 5.2).
23.4 - Consent of DeGolyer and MacNaughton, independent
petroleum engineers.
24.1 - Powers of Attorney of Board of Directors of TEL and
TEC .
25.1 - Statement of eligibility of The Chase Manhattan Bank
as Trustee under the TEC Senior Debt Indenture.
25.2 - Statement of eligibility of The Chase Manhattan Bank
as Trustee under the TEL Senior Debt Indenture.
25.3 - Statement of eligibility of The Chase Manhattan Bank
as Trustee under the TEL Subordinated Debt
Indenture.
25.4 - Statement of eligibility of United States Trust
Company of New York as Trustee under the TEC Senior
Subordinated Debt Indenture.
25.5 - Statement of eligibility of United States Trust
Company of New York as Trustee under the TEL Senior
Subordinated Debt Indenture.
*To be filed by amendment.
II-11
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 Delaware corporation ("TEC"), proposes to issue and sell from time to time
certain of its debt securities or warrants representing
rights to purchase such joint and several debt securities (the "Warrants")
registered under the registration statement referred to in Section 2(a) (the
"Registered TEC Securities"). The Registered TEC Securities will be fully
and unconditionally guaranteed (the "Guarantee" and, together with the
Registered TEC Securities, the "Registered Securities") by Triton Energy
Limited ("TEL", and together with TEC, the "Companies"), a Cayman Islands
company of which TEC is a wholly owned subsidiary. The Registered Securities
will be issued under an indenture dated as of ___________, 199_ (the
"Indenture") among the Companies 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") among the
Companies 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.
<PAGE>
2. Representations and Warranties of the Companies. The Companies
represent and warrant to, and agree with, each Underwriter that:
(a) The Companies have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of the Securities Act of 1933, as amended (the "Act"), the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"), and the rules
and regulations of the Commission ("Rules and Regulations"), a
registration statement on Form S-3 (File No. 333-_______), including a
combined prospectus, relating to certain of the debt securities,
preference shares of TEL, ordinary shares of TEL and warrants of the
Companies (including the Securities) 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 Act, including all
materials incorporated by reference therein, is hereinafter referred to
as the "Prospectus".
(b) On the effective date of the Registration Statement, the
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, on the Closing Date (as hereinafter defined),
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 (in the case of the Prospectus,
in light of the circumstances under which they were made) 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 Companies 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.
(c) Each of the Companies is duly incorporated and is validly
existing and in good standing as a company or corporation, as applicable,
under the laws of its jurisdiction of incorporation, with corporate power
and authority to own its respective properties and conduct its respective
business as described in the Prospectus; and each 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, except where the failure to
be so qualified or in good standing would not have a material adverse
effect on the business, properties, operations, financial condition or
results of operations of TEL and its subsidiaries taken as a whole.
(d) This Agreement has been duly authorized, executed and delivered
by the Companies and constitutes a valid and legally binding obligation
<PAGE>
of the Companies enforceable against the Companies 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), an implied
covenant of good faith and fair dealing and considerations of public
policy in respect of the indemnification provisions hereof.
(e) The Indenture has been duly authorized by the Companies and,
when executed and delivered by the Companies and the Trustee and
qualified under the Trust Indenture Act, will constitute a valid and
legally binding instrument of the Companies enforceable against the
Companies 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.
The Indenture conforms in all material, respects to the description
thereof set forth in the Prospectus.
(f) The documents incorporated by reference in 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the applicable
rules and regulations of the Commission thereunder.
(g) Since the respective dates as of which information is given in
the Registration Statement, except as set forth in the Prospectus, there
has not been any material adverse change in the business, properties,
operations, financial condition or results of operations of TEL and its
subsidiaries taken as a whole, and since the date of the latest
consolidated balance sheet of TEL and its subsidiaries included in the
Registration Statement, neither TEL nor any of its subsidiaries has
incurred or undertaken any liabilities or obligations, direct or
contingent, that are material to the business, properties, operations,
financial condition or results of operations of TEL and its subsidiaries
taken as a whole, except for liabilities or obligations that were
incurred or undertaken in the ordinary course of business or that are
adequately reflected in the Registration Statement.
(h) The Securities have been duly authorized by the Companies and,
when authenticated by the Trustee and issued and sold by the Companies
pursuant to this Agreement against payment therefor, will constitute,
valid and legally binding obligations of the Companies enforceable
against the Companies in accordance with their terms and entitled to the
benefits of the 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. The Securities, when issued,
will conform in all material respects to the description thereof set
forth in the Prospectus.
(i) The execution, delivery and performance of the Indenture, this
Agreement 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, or
<PAGE>
conflict with any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Companies or any of their properties or the charter or by-laws of the
Companies, or any agreement or instrument to which either of the
Companies is a party or by which either of the Companies is bound or to
which any of the properties of either of the Companies is subject, and
will not result in the imposition or creation of any lien upon any
property of either of the Companies, in each case that has had or could
reasonably be expected to have a material adverse effect on the business,
properties, operations, financial condition or results of operations of
TEL and its subsidiaries taken as a whole; and the Companies have full
power and authority to authorize, issue and sell the Securities as
contemplated by the provisions of this Agreement.
(j) The consolidated financial statements of TEL and its
subsidiaries, together with the related schedules and notes, incorporated
by reference in the Registration Statement present fairly in all material
respects the consolidated financial position, results of operations, cash
flow and stockholder's equity of TEL and its consolidated subsidiaries in
conformity with generally accepted accounting principles on the basis
stated in the Registration Statement at the respective dates and for the
respective periods to which they apply; such financial statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other
financial and statistical information and data with respect to TEL and
its subsidiaries set forth in the Registration Statement present fairly
the information purported to be shown thereby at the respective dates or
for the respective periods to which they apply and have been prepared on
a basis consistent with such financial statements and the books and
records of TEL.
(k) Except as may be set forth in the Prospectus, there are no
legal or governmental proceedings pending or, to the knowledge of the
Companies, threatened to which either of the Companies is a party or of
which any of their respective properties or assets is the subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described. There is no statute, regulation,
contract or other document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not so described or filed as required.
(l) 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 Companies,
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.
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
<PAGE>
payment (such time and date, or such other time not later than seven full
business days thereafter as the Representatives and the Companies 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 Companies authorize 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 Companies 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 Companies 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 Companies execute and deliver 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 Companies. The Companies 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 Companies. The Companies agree with
the several Underwriters that they 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 Companies 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 Companies 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
Companies 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.
<PAGE>
(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
Companies 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 Companies 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 TEL'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 Companies 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 Companies 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
Companies will furnish to the Representatives as soon as practicable
after the end of each fiscal year, a copy of TEL's annual report to
stockholders for such year and, so long as TEC is an obligor on the
Securities, any annual report of TEC prepared for such year; and the
Companies will furnish to the Representatives (i) as soon as available, a
copy of each report or definitive proxy statement of either of the
Companies 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 Companies
as the Representatives may reasonably request.
(h) The Companies 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
<PAGE>
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 Companies herein, to the accuracy of the statements of officers of
the Companies made pursuant to the provisions hereof, to the performance by
the Companies of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of TEL'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, such letter to be
in form and substance reasonably satisfactory to the Representatives and their
counsel.
(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 Companies 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 TEL 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 of the Companies' joint debt securities or either of the
Companies' several debt securities 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 such debt securities (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 TEL 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 W.S. Walker & Company, counsel for TEL, to the effect that:
<PAGE>
(i) TEL has been duly incorporated and is validly existing and
in good standing as a company under the laws of the Cayman Islands,
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 TEL; and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid
and legally binding instrument of TEL enforceable against TEL 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 TEL; the
Securities other than any Contract Securities have been duly
executed and issued by TEL; assuming due authentication of the
Securities by the Trustee and upon payment and delivery in
accordance with this Agreement, the Securities other than any
Contract Securities will constitute, and any Contract Securities,
when duly executed and issued by TEL 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 TEL enforceable against TEL 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 TEL and the Warrants may be exercised to
purchase debt securities of TEL in accordance with their terms and
the terms of the Warrant Agreement; if any Securities are to be
issued as convertible securities, the Ordinary Shares 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; and
(iv) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by TEL.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the laws of the Cayman Islands 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:
<PAGE>
(i) TEC has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of Delaware, 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 TEC and duly qualified under the Trust
Indenture Act; and, assuming due authorization, execution and
delivery thereof by TEL and the Trustee, constitutes a valid and
legally binding instrument of TEC and TEL enforceable against each
of them 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 TEC; the
Securities other than any Contract Securities have been duly
executed and issued by TEC; assuming due authentication of the
Securities by the Trustee and upon payment and delivery in
accordance with this Agreement, the Securities other than any
Contract Securities will constitute, and any Contract Securities,
when duly executed and issued by TEC 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 TEC and TEL (assuming the due authorization,
execution and delivery of such Securities or Contract Securities by
TEL) enforceable against each of them 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 by TEC
and TEL, the Warrants in definitive form will constitute valid and
legally binding obligations of TEC and TEL and the Warrants may be
exercised to purchase debt securities of TEC in accordance with
their terms and the terms of the Warrant Agreement;
(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 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
<PAGE>
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
Closing 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 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 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; 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;
(vii) 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
(viii) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by TEC.
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, the laws of the State of New York and the Delaware General
Corporation Law 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 Cayman Islands upon the opinion of W.S. Walker & Company furnished
pursuant to Section 5(d) of this Agreement.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of Robert B. Holland, III, General Counsel of the Company, to
the effect that:
(i) To the best knowledge of such counsel, each of the
Companies 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, except where the failure to be so
qualified or in good standing would not have a material adverse
effect on the business, properties, operations, financial condition
or results of operations of TEL and its subsidiaries taken as a
whole;
(ii) To the best 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
<PAGE>
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Securities by the
Companies, 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;
(iii) To the best knowledge of such counsel, 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 Companies or any of their properties or the charter or by-laws
of the Companies, or any agreement or instrument to which either of
the Companies is a party or by which either of the Companies is
bound or to which any of the properties of either of the Companies
is subject, and the Companies have full power and authority to
authorize, issue and sell the Securities as contemplated by the
provisions of this Agreement; and
(iv) 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.
In rendering such opinion, such counsel may (i) state that his
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 (ii) rely (to the
extent such counsel deems proper and specifies in his opinion), as to matters
involving the application of the laws of the Cayman Islands upon the opinion
of W.S. Walker & Company furnished pursuant to Section 5(d) of this Agreement.
(g) 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 Companies, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Companies shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(h) 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 each of the Companies in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of such Company in this
Agreement are true and correct, that such 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
<PAGE>
of TEL and its subsidiaries except as set forth in or contemplated by the
Prospectus or as described in such certificate.
The Companies 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 Companies 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 Companies 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 Companies by any Underwriter
specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Companies
against any losses, claims, damages or liabilities to which the Companies 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 statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Companies by
such Underwriter specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Companies 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,
<PAGE>
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 Companies 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 Companies 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
Companies 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 Companies 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 Companies 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
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 Companies under this Section shall be in
addition to any liability which the Companies 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 Companies, to each
officer of each of the Companies who has signed the Registration Statement and
<PAGE>
to each person, if any, who controls the Companies 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 Companies 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 Companies 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 Companies, 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
Companies.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Companies or their 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 Companies 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 Companies shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 4 and the respective obligations of the
Companies 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 Companies in writing for
the purpose of communications hereunder or, if sent to TEL, will be mailed,
delivered or telegraphed and confirmed to it at Caledonian House, Mary Street,
P.O. Box 1043, George Town, Grand Cayman, Cayman Islands, or, if sent to TEC,
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 Companies and such Underwriters as are identified in Annex I
and their respective successors and the officers and directors and controlling
<PAGE>
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.
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]
TRITON ENERGY LIMITED
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 Delaware corporation ("TEC"), and TEC agrees to sell to the
undersigned, $_____________ principal amount of TEC's _________________
(the "Securities"), which Securities are i) fully and unconditionally
guaranteed by Triton Energy Limited ("TEL", and together with TEC, the
"Companies"), a Cayman Islands company of which TEC is a wholly owned
subsidiary and ii) offered by the Companies' Prospectus dated _________ __,
1996 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 TEC 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 TEC 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 TEC 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 TEC 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) TEC
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
TEC's sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If this Contract is acceptable to
TEC, it is requested that TEC 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 among the Companies
and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
________________________________________
(Name of Purchaser)
By______________________________________
_______________________________________
(Title of Signatory)
_______________________________________
_______________________________________
(Address of Purchaser)
<PAGE>
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 LIMITED
Debt Securities
Warrants to Purchase Debt Securities
Underwriting Agreement
___________, 19__
Triton Energy Limited
Caledonian House, Mary Street
P.O. Box 1043, George Town
Grand Cayman, Cayman Islands
Dear Sirs:
1. Introductory. Triton Energy Limited, a Cayman Islands company
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities or warrants representing rights to purchase such debt
securities (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) The Company and Triton Energy Corporation ("TEC"), its wholly
owned subsidiary, have prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), the Trust Indenture Act of
1939, as amended ("Trust Indenture Act"), and the rules and regulations of
the Commission ("Rules and Regulations"), a registration statement on Form
<PAGE>
S-3 (File No. 333-_______), including a combined prospectus, relating to
certain of the debt securities, preference shares, ordinary shares and
warrants of the Company (including the Securities) and certain of the
joint several debt securities and warrants of the Company and TEC 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 Act, including all materials incorporated by reference therein,
is hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement, the
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, on the Closing Date (as hereinafter defined),
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 (in the case of the Prospectus,
in light of the circumstances under which they were made) 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.
(c) The Company is duly incorporated and is validly existing and in
good standing as a company under the laws of the Cayman Islands, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and 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, except where the failure to be
so qualified or in good standing would not have a material adverse effect
on the business, properties, operations, financial condition or results of
operations of the Company and its subsidiaries taken as a whole.
(d) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding obligation 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), an implied covenant of good faith and
fair dealing and considerations of public policy in respect of the
indemnification provisions hereof.
(e) The Indenture has been duly authorized by the Company and, when
executed and delivered by the Company and the Trustee and qualified under
<PAGE>
the Trust Indenture Act, will constitute 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. The Indenture conforms in all material,
respects to the description thereof set forth in the Prospectus.
(f) The documents incorporated by reference in 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the applicable
rules and regulations of the Commission thereunder.
(g) Since the respective dates as of which information is given in
the Registration Statement, except as set forth in the Prospectus, there
has not been any material adverse change in the business, properties,
operations, financial condition or results of operations of the Company
and its subsidiaries taken as a whole, and since the date of the latest
consolidated balance sheet of the Company and its subsidiaries included in
the Registration Statement, neither the Company nor any of its
subsidiaries has incurred or undertaken any liabilities or obligations,
direct or contingent, that are material to the business, properties,
operations, financial condition or results of operations of the Company
and its subsidiaries taken as a whole, except for liabilities or
obligations that were incurred or undertaken in the ordinary course of
business or that are adequately reflected in the Registration Statement.
(h) The Securities have been duly authorized by the Company and,
when authenticated by the Trustee and issued and sold by the Company
pursuant to this Agreement against payment therefor, 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 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. The Securities, when issued, will conform in
all material respects to the description thereof set forth in the
Prospectus.
(i) The execution, delivery and performance of the Indenture, this
Agreement 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, or
conflict with any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any of its properties or the charter or by-laws of the Company,
or any agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company is
subject, and will not result in the imposition or creation of any lien
upon any property of the Company, in each case that has had or could
reasonably be expected to have a material adverse effect on the business,
properties, operations, financial condition or results of operations of
the Company and its subsidiaries taken as a whole; and the Company has
<PAGE>
full power and authority to authorize, issue and sell the Securities as
contemplated by the provisions of this Agreement.
(j) The consolidated financial statements of the Company and its
subsidiaries, together with the related schedules and notes, incorporated
by reference in the Registration Statement present fairly in all material
respects the consolidated financial position, results of operations, cash
flow and stockholder's equity of the Company and its consolidated
subsidiaries in conformity with generally accepted accounting principles
on the basis stated in the Registration Statement at the respective dates
and for the respective periods to which they apply; such financial
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; and
the other financial and statistical information and data with respect to
the Company and its subsidiaries set forth in the Registration Statement
present fairly the information purported to be shown thereby at the
respective dates or for the respective periods to which they apply and
have been prepared on a basis consistent with such financial statements
and the books and records of the Company.
(k) Except as may be set forth in the Prospectus, there are no legal
or governmental proceedings pending or, to the knowledge of the Company,
threatened to which the Company is a party or of which any of its
properties or assets is the subject that are required to be described in
the Registration Statement or the Prospectus and are not so described.
There is no statute, regulation, contract or other document of a character
required to be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement that is not so
described or filed as required.
(l) 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.
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.
<PAGE>
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
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 they 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.
<PAGE>
(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 the Company's 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 officers of
the Company 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
<PAGE>
letters" to underwriters with respect to the financial information contained in
or incorporated by reference in the Prospectus, such letter to be in form and
substance reasonably satisfactory to the Representatives and their counsel.
(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 downgrading in
the rating of any of the Company's debt securities 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 such debt securities (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 W.S. Walker & Company, counsel for the Company, to the effect
that:
(i) TEL has been duly incorporated and is validly existing and
in good standing as a company under the laws of the Cayman Islands,
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 TEL; and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid
and legally binding instrument of TEL enforceable against TEL 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 TEL; the
Securities other than any Contract Securities have been duly executed
and issued by TEL; assuming due authentication of the Securities by
<PAGE>
the Trustee and upon payment and delivery in accordance with this
Agreement, the Securities other than any Contract Securities will
constitute, and any Contract Securities, when duly executed and
issued by TEL 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 TEL enforceable
against TEL 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 TEL and
the Warrants may be exercised to purchase debt securities of TEL in
accordance with their terms and the terms of the Warrant Agreement;
if any Securities are to be issued as convertible securities, the
Ordinary Shares 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; and
(iv) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by TEL.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the laws of the Cayman Islands 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) Assuming due authorization, execution and delivery of the
applicable Indenture by the Company and the Trustee, the applicable
Indenture 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;
(ii) Assuming due authorization, execution and delivery of the
Securities by the Company and authentication of the Securities by the
Trustee and upon payment and delivery in accordance with this
Agreement, the Securities other than any Contract Securities will
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,
<PAGE>
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 by the Company, 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;
(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 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;
(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
Closing 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 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 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; 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) 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
<PAGE>
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, the laws of the State of New York and the Delaware General
Corporation Law 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 Cayman Islands upon the opinion of W.S. Walker & Company furnished
pursuant to Section 5(d) of this Agreement.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of Robert B. Holland, III, General Counsel of the Company, to the
effect that:
(i) To the best knowledge of such counsel, 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,
except where the failure to be so qualified or in good standing would
not have a material adverse effect on the business, properties,
operations, financial condition or results of operations of the
Company and its subsidiaries taken as a whole;
(ii) To the best 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;
(iii) To the best of the knowledge of such counsel, 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 of
their properties or the charter or by-laws of the Company, or any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company
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; and
(iv) 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.
In rendering such opinion, such counsel may (i) state that his
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 (ii) rely (to the extent such
counsel deems proper and specifies in his opinion), as to matters involving the
<PAGE>
application of the laws of the Cayman Islands upon the opinion of W.S. Walker &
Company furnished pursuant to Section 5(d) of this Agreement.
(g) 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.
(h) 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
<PAGE>
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
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
<PAGE>
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 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 its
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
<PAGE>
remain responsible for the expenses to be paid or reimbursed by them 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 Caledonian House, Mary
Street, P.O. Box 1043, George Town, Grand Cayman, Cayman Islands with a copy to
Triton Energy Corporation 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.
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 LIMITED
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....)[FN]
Delayed Delivery Contract
[Insert date of initial public offering]
Triton Energy Limited
c/o [NAME OF PURCHASER]
[ADDRESS]
Attention: ____________
Gentlemen:
The undersigned hereby agrees to purchase from Triton Energy
Limited, a Cayman Islands company (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 _________ __,
1996 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.
<F1> Insert date which is third full business day prior to Closing Date
specified in Annex I.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on each Delivery Date shall be made to the Company or
their 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 LIMITED
By_____________________________
[Insert Title]
EXHIBIT 1.3
TRITON ENERGY LIMITED
Equity Securities
Warrants to Purchase Equity Securities
Underwriting Agreement
___________, 19__
Triton Energy Limited
Caledonian House, Mary Street
P.O. Box 1043, George Town
Grand Cayman, Cayman Islands
Dear Sirs:
1. Introductory. Triton Energy Limited, a Cayman Islands company
(the "Company"), proposes to issue and sell from time to time certain of its
preference shares (the "Preference Shares") or ordinary shares (the "Ordinary
Shares") or warrants representing rights to purchase preference shares or
ordinary shares of the Company (the "Warrants") registered under the
registration statement referred to in Section 2(a) (the Preference Shares,
Ordinary Shares 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) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of the Securities Act of 1933, as amended (the "Act") and the rules and
regulations of the Commission ("Rules and Regulations"), a registration
statement (No. 333- __________), including a combined prospectus, relating
to certain of the joint and several debt securities of the Company and
Triton Energy Corporation, a Delaware corporation and a wholly-owned
subsidiary of the Company, preference shares, ordinary shares and warrants
of the Company (including the Firm Securities) 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 Act, including all
materials incorporated by reference therein, is hereinafter referred to as
the "Prospectus".
(b) On the effective date of the Registration Statement, the
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, on the Closing Date, 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
(in the case of the Prospectus, in light of the circumstances under which
they were made) 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.
(c) The Company is duly incorporated and is validly existing and in
good standing as a company under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its respective
properties and conduct its respective business as described in the
Prospectus; and 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, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the business,
properties, operations, financial condition or results of operations of
the Company and its subsidiaries taken as a whole.
(d) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding obligation 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), an implied covenant of good faith and
<PAGE>
fair dealing and considerations of public policy in respect of the
indemnification provisions hereof.
(e) The documents incorporated by reference in 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the applicable
rules and regulations of the Commission thereunder.
(f) Since the respective dates as of which information is given in
the Registration Statement, except as set forth in the Prospectus, there
has not been any material adverse change in the business, properties,
operations, financial condition or results of operations of the Company
and its subsidiaries taken as a whole, and since the date of the latest
consolidated balance sheet of the Company and its subsidiaries included in
the Registration Statement, neither the Company nor any of its
subsidiaries has incurred or undertaken any liabilities or obligations,
direct or contingent, that are material to the business, properties,
operations, financial condition or results of operations of the Company
and its subsidiaries taken as a whole, except for liabilities or
obligations that were incurred or undertaken in the ordinary course of
business or that are adequately reflected in the Registration Statement.
(g) The Securities have been duly authorized by the Company and,
when issued and sold by the Company pursuant to this Agreement against
payment therefor, will be duly and validly issued, fully paid and
nonassessable. The Securities, when issued, will conform in all material
respects to the description thereof set forth in the Prospectus.
(h) The execution, delivery and performance of this Agreement and
the issuance and sale of the Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, or conflict with any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any of its properties or the charter or by-laws of the Company,
or any agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company is
subject, and will not result in the imposition or creation of any lien
upon any property of the Company, in each case that has had or could
reasonably be expected to have a material adverse effect on the business,
properties, operations, financial condition or results of operations of
the Company and its subsidiaries taken as a whole; and the Company has
full power and authority to authorize, issue and sell the Securities as
contemplated by the provisions of this Agreement.
(i) The consolidated financial statements of the Company and its
subsidiaries, together with the related schedules and notes, incorporated
by reference in the Registration Statement present fairly in all material
respects the consolidated financial position, results of operations, cash
flow and stockholder's equity of the Company and its consolidated
subsidiaries in conformity with generally accepted accounting principles
on the basis stated in the Registration Statement at the respective dates
and for the respective periods to which they apply; such financial
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; and
the other financial and statistical information and data with respect to
<PAGE>
the Company and its subsidiaries set forth in the Registration Statement
present fairly the information purported to be shown thereby at the
respective dates or for the respective periods to which they apply and
have been prepared on a basis consistent with such financial statements
and the books and records of the Company.
(j) Except as may be set forth in the Prospectus, there are no legal
or governmental proceedings pending or, to the knowledge of the Company,
threatened to which the Company is a party or of which any of its
properties or assets is the subject that are required to be described in
the Registration Statement or the Prospectus and are not so described.
There is no statute, regulation, contract or other document of a character
required to be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement that is not so
described or filed as required.
(k) 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 such as may
be required under applicable state securities laws.
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
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
<PAGE>
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
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
<PAGE>
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
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 preference
shares or ordinary shares (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 ordinary shares or
<PAGE>
preference shares (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, such letter to be in form and
substance reasonably satisfactory to the Representatives and their counsel.
(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,
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 W.S. Walker & Company, 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
<PAGE>
Cayman Islands, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(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 ordinary shares or preference shares 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 Ordinary Shares 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; and
(iii) 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 state that their opinion
is limited to matters governed by the laws of the Cayman Islands.
(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 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 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;
(ii) 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
<PAGE>
Closing 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 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;
(iii) 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; 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
(iv) 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 ordinary shares and
preference shares (including the Securities), constitute accurate
summaries of the terms of such ordinary shares and preference shares
in all material respects.
In rendering such opinion, such counsel may state that their opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the Delaware General Corporation
Law.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of Robert B. Holland, III, General Counsel of the Company, to the
effect that:
(i) To the best knowledge of such counsel, 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,
except where the failure to be so qualified or in good standing would
not have a material adverse effect on the business, properties,
operations, financial condition or results of operations of the
Company and its subsidiaries taken as a whole;
(ii) To the best 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 such as may be required
under applicable state securities laws;
(iii) To the best knowledge of such counsel, 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
<PAGE>
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 of its properties or the
charter or by-laws of the Company, or any agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the properties of the Company 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;
(iv) 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.
In rendering such opinion, such counsel may state that his 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 (ii) rely (to the extent such counsel
deems proper and specifies in his opinion), as to matters involving the
application of the laws of the Cayman Islands upon the opinion of W.S. Walker &
Company furnished pursuant to Section 5(d) of this Agreement.
(g) 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.
(h) 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.
(i) At the Closing Date, (i) if Annex I provides that any Ordinary
Shares 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.
<PAGE>
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
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.
<PAGE>
(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
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
<PAGE>
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
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 Caledonian House, Mary
Street, P.O. box 1043, George Town, Grand Cayman, Cayman Islands with a copy to
Triton Energy Corporation 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 LIMITED
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 [Preference Shares] [Ordinary Shares]
[Warrants].]
Number of shares of [Preference Shares] [Ordinary Shares] [Warrants] to be
issued: _______
Initial public offering price per [Preference Share] [Ordinary Share]
[Warrants]: $_______, [plus accrued and unpaid dividends, if any, from
_________, 19__.]
Purchase price per [Preference Share] [Ordinary Share] [Warrant]:
$_______
(amount equal to the initial public offering price set forth above,
less $_______ per [Preference Share] [Ordinary Share] [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....)[FN]
Delayed Delivery Contract
[Insert date of initial public offering]
Triton Energy Limited
c/o [NAME OF PURCHASER]
[ADDRESS]
Attention: ____________
Gentlemen:
The undersigned hereby agrees to purchase from Triton Energy Limited,
a Cayman Islands company (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.
<F1> Insert date which is third full business day prior to Closing Date
specified in Annex I.
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 LIMITED
By_________________________________
[Insert Title]
EXHIBIT 4.1
TRITON ENERGY CORPORATION
[Title of Series of Securities]
No. ____ $___________
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS REGISTERED GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
TRITON ENERGY CORPORATION, a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), for value received, hereby promises to pay
to _____________, or registered assigns, the principal sum of _____________ at
the office or agency of the Company referred to below, on ___________, and to
pay interest, semi-annually on _________ and _________, of each year, on said
principal sum at said office or agency, at the rate of ____% per annum, from
the ___________ or ___________, as the case may be, next preceding the date
of this Security to which interest has been paid, unless the date hereof is
the date to which interest has been paid, in which case from the date of this
Security, or unless no interest has been paid on the Securities, in which case
from _________, until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after the
____ day of the calendar month preceding any __________ or __________, as the
case may be, and prior to such __________ or __________, this Security shall
bear interest from such __________ or __________; provided, however, that if
and to the extent that the Companies shall default in the payment of interest
due on such __________ or __________, then this Security shall bear interest
from the next preceding __________ or __________ to which interest has been
paid, or, if no interest has been paid on the Securities, from ____________.
The interest so payable on any _________ or __________ will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Security is registered at the close of
business on the ____ day of the calendar month preceding such _________ or
__________.
Reference is made to the further provisions of this Security set
forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
The Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed in its name and on its behalf by the signature of its
_______________ and by signature of its _______________ and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated: _______________
TRUSTEE'S CERTIFICATE OF [SEAL] TRITON ENERGY CORPORATION
AUTHENTICATION
This is one of the Securities of
the series designated
herein referred to in the within By:_______________________
mentioned Indenture.
____________, as Trustee By:_______________________
By:_____________________________
Authorized Officer
<PAGE>
TRITON ENERGY CORPORATION
[Title of Series of Securities]
This Security is one of a duly authorized issue of Securities of the
Company, designated as its ____________________ (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) to the aggregate principal amount of $_____________, all issued or
to be issued under and pursuant to an Indenture, dated as of ___________
(herein called the "Indenture"), duly executed and delivered by the Company
and __________, as Trustee (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities are issuable in registered form
only, without coupons, in denominations of $______ and integral multiples
thereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof and interest hereon may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities at any time by the
Company and the Trustee with the consent of the holders of a majority in
aggregate principal amount of the outstanding Securities. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the outstanding Securities, on behalf of the holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the holder of this Security shall
be conclusive and binding upon such holder and upon all future holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
Subject to the terms of the Indenture, the Company may elect
[either (i)] to defease and be discharged from any and all obligations with
respect to the Securities [or (ii) to be released from their obligations with
respect to certain covenants applicable to the Securities], upon compliance by
the Companies with certain conditions set forth therein, which provisions apply
to this Security.
[Discussion of provisions relating to redemption, if applicable.]
[Discussion of provisions relating to subordination, if applicable.]
<PAGE>
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligations of the
Companies, which are absolute and unconditional, to pay the principal of and
interest on this Security at the place, at the respective times, at the rate
and in the coin or currency prescribed herein.
Upon the presentment for registration of transfer of this Security at
the office or agency of the Company at ____________________, a new Security
or Securities of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee or any Security registrar, co-registrar,
paying agent or authenticating agent, may deem and treat the registered holder
hereof as the absolute owner of this Security, for the purpose of receiving
payment hereof, or on account hereof, and for all other purposes, and the
Company or the Trustee or any Security registrar, co-registrar, paying agent
or authenticating agent shall not be affected by any notice to the contrary.
<PAGE>
Guarantee of Triton Energy Limited
For value received, Triton Energy Limited, a company duly organized
and existing under the laws of the Cayman Islands (herein called the
"Guarantor", which term includes any successor corporation under the Indenture
referred to in the Security upon which this Guarantee is endorsed), hereby
unconditionally guarantees to the holder of the Security upon which this
Guarantee is endorsed the due and prompt payment of the principal of (and
premium, if any) and interest on such Security when and as the same shall
become due and payable, whether at its stated maturity, by declaration of
acceleration, call for redemption or otherwise, according to the terms thereof
and of the Indenture referred to therein. In case of the failure of the
Company punctually to make any such principal, premium or interest payment, the
Guarantor hereby agrees to cause any such payment to be made promptly when and
as the same shall become due and payable, whether at its stated maturity, by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby further agrees that any amounts to be paid by
the Guarantor under this Guarantee shall be paid without deduction or
withholding for any and all present and future withholding taxes, levies,
imposts and charges whatsoever imposed by or for the account of the Cayman
Islands or any political subdivision or taxing authority thereof or therein, or
if deduction or withholding of any such taxes, levies, imposts or charges shall
at any time be required by the Cayman Islands or any such subdivision or
authority, the Guarantor will (subject to compliance by the holder of such
Security with any relevant administrative requirements) pay such additional
amount in respect of principal (and premium, if any) and interest as may be
necessary in order that the net amounts paid to such holder or the Trustee
under such Indenture, as the case may be, pursuant to this Guarantee, after
such deduction or withholding, shall equal the respective amounts of principal
(and premium, if any) and interest as specified in such Security to which such
holder or the Trustee is entitled; provided, however that the foregoing shall
not apply to any such tax, levy, impost or charge which would not be payable or
due but for the fact that (i) the holder of such Security is a domiciliary,
national or resident of, or engaging in business or maintaining a permanent
establishment or being physically present in, the Cayman Islands or such
political subdivision or otherwise having some connection with the Cayman
Islands other than the holding or ownership of such Security or the collection
of principal of (and premium, if any) or interest on such Security or the
enforcement of such Security or this Guarantee or (ii) where presentation is
required, such Security was presented more than 30 days after the date such
payment became due or was provided for, whichever is later.
The Guarantor hereby agrees that its obligations hereunder shall be
as if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any
<PAGE>
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the holder of such Security or such Trustee, or any other circumstance which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor, provided, however, that, notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the consent of the Guarantor,
increase the principal amount of such Security or the interest rate thereon or
increase any premium payable upon redemption thereof. The Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by payment in full
of the principal of (and premium, if any) and interest on such Security.
The Guarantor shall be subrogated to all rights of the holder of such
Security against the Company in respect of any amounts paid to such holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on all Securities of the same series issued
under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal of (and premium, if any) and interest on the Security upon
which this Guarantee is endorsed at the times, place and rate, and in the cash
or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of such Security shall have been manually
executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
[Discussion of provisions relating to subordination, if applicable.]
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed in facsimile by a person duly authorized in that behalf.
TRITON ENERGY LIMITED
_________________________________
Authorized Signatory
Dated the date on the face hereof.
EXHIBIT 4.2
TRITON ENERGY LIMITED
[Title of Series of Securities]
No. ____ $__________
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS REGISTERED GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
TRITON ENERGY LIMITED, a Cayman Islands company (such company, and
its succesors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of _____________ at the
office or agency of the Company referred to below, on ___________, and to pay
interest, semi-annually on _________ and _________, of each year, on said
principal sum at said office or agency, at the rate of ____% per annum, from
the ___________ or ___________, as the case may be, next preceding the date of
this Security to which interest has been paid, unless the date hereof is the
date to which interest has been paid, in which case from the date of this
Security, or unless no interest has been paid on the Securities, in which case
from _________, until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after the
____ day of the calendar month preceding any __________ or __________, as the
case may be, and prior to such __________ or __________, this Security shall
bear interest from such __________ or __________; provided, however, that if
and to the extent that the CompanY shall default in the payment of interest due
on such __________ or __________, then this Security shall bear interest from
the next preceding __________ or __________ to which interest has been paid,
or, if no interest has been paid on the Securities, from ____________. The
interest so payable on any _________ or __________ will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Security is registered at the close of
business on the ____ day of the calendar month preceding such _________ or
__________.
Reference is made to the further provisions of this Security set
forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
The Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf by the signature of its _______________
and by signature of its _______________ and has caused its corporate seal to be
affixed hereunto or imprinted hereon.
Dated: _______________
TRUSTEE'S CERTIFICATE OF [SEAL] TRITON ENERGY LIMITED
AUTHENTICATION
This is one of the Securities of
the series designated By:_____________________
herein referred to in the within
mentioned Indenture.
By:_____________________
_______________, as Trustee
By:_____________________________
Authorized Officer
<PAGE>
TRITON ENERGY LIMITED
[Title of Series of Securities]
This Security is one of a duly authorized issue of Securities of the
Company, designated as its ____________________ (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) to the aggregate principal amount of $_____________, all issued or to
be issued under and pursuant to an Indenture, dated as of ___________ (herein
called the "Indenture"), duly executed and delivered by each of the Companies
and __________, as Trustee (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities are issuable in registered form
only, without coupons, in denominations of $______ and integral multiples
thereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof and interest hereon may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities at any time by the
Company and the Trustee with the consent of the holders of a majority in
aggregate principal amount of the outstanding Securities. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the outstanding Securities, on behalf of the holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the holder of this Security shall
be conclusive and binding upon such holder and upon all future holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
Subject to the terms of the Indenture, the Company may elect [either
(i)] to defease and be discharged from any and all obligations with respect to
the Securities [or (ii) to be released from their obligations with respect to
certain covenants applicable to the Securities], upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Security.
[Discussion of provisions relating to redemption, if applicable.]
[Discussion of provisions relating to subordination, if applicable.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligations of the
Company, which are absolute and unconditional, to pay the principal of and
interest on this Security at the place, at the respective times, at the rate
and in the coin or currency prescribed herein.
<PAGE>
Upon the presentment for registration of transfer of this Security at
the office or agency of the Company at ____________________, a new Security or
Securities of authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee or any Security registrar, co-registrar,
paying agent or authenticating agent, may deem and treat the registered holder
hereof as the absolute owner of this Security, for the purpose of receiving
payment hereof, or on account hereof, and for all other purposes, and the
Company or the Trustee or any Security registrar, co-registrar, paying agent or
authenticating agent shall not be affected by any notice to the contrary.
Exhibit 4.5
FORM OF SENIOR INDENTURE
THIS SENIOR INDENTURE, dated as of _________ __, 199__ between TRITON
ENERGY LIMITED, a Cayman Islands company (the "Issuer"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided provided herein or in any indenture supplemental
hereto or unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted on the date of this
Indenture.
<PAGE>
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to
the effective date of the original execution and delivery of this Indenture,
viz. as of _________ __, 199__.
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.
<PAGE>
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, the Person designated
as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to the Depositary for such series in accordance with Section
2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean, in the case of any Security, the Person in whose name such Security is
registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if any,
on indebtedness for money borrowed of such Person, indebtedness of such
Person evidenced by bonds, notes, debentures or similar obligations, and
any guaranty by such Person of any indebtedness for money borrowed or
indebtedness evidenced by bonds, notes, debentures or similar obligations
of any other Person, whether any such indebtedness or guaranty is
outstanding on the date of this Indenture or is thereafter created,
assumed or incurred, (ii) obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar
credit transaction; (iii) the principal of and premium, if any, and
interest, if any, on indebtedness incurred, assumed or guaranteed by such
Person in connection with the acquisition by it or any of its subsidiaries
of any other businesses, properties or other assets; (iv) lease
obligations which such Person capitalized in accordance with Statement of
Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect; (v) any indebtedness of
such Person representing the balance deferred and unpaid of the purchase
price of any property or interest therein (except any such balance that
constitutes an accrued expense or trade payable) and any guaranty,
endorsement or other contingent obligation of such Person in respect of
any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person;
<PAGE>
and (vi) obligations of such Person under interest rate, commodity or
currency swaps, caps, collars, options and similar arrangements if and to
the extent that any of the foregoing indebtedness in (i) through (vi)
would appear as a liability on the balance sheet of such Person in
accordance with generally accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness in
clause (a) above.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether
at stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
which is signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer
of the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required by the provisions of such Section
11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
<PAGE>
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount
shall have been deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent), provided that, if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof.
<PAGE>
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the amount
(including, without limitation, if and to the extent applicable, any premium
and, in the case of an Original Issue Discount Security, any accrued original
issue discount, but excluding interest) that is payable with respect to such
debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means the
principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of
this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other than
an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is designated
by the Issuer (by Board Resolution) to be a Restricted Subsidiary; provided,
however, that the Issuer may not designate any such Subsidiary to be a
Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding
Indebtedness of such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture or, as the case may be, Securities that have been authenticated
and delivered pursuant to this Indenture.
"Subsidiary" of any specified Person means any corporation of which such
Person, or such Person and one or more Subsidiaries of such Person, or any one
or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this
Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is
then a trustee hereunder and, if at any time there is more than one such
<PAGE>
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer acquired
or organized after the date hereof, provided, however, that such Subsidiary
shall not be a successor, directly or indirectly, to any Restricted Subsidiary,
and (b) any Subsidiary of the Issuer substantially all the assets of which
consist of stock or other securities of a Subsidiary or Subsidiaries of the
character described in clause (a) of this paragraph, unless and until such
Subsidiary shall have been designated to be a Restricted Subsidiary pursuant to
clause (b) of the definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a
word or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice or as otherwise provided
in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be
substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
<PAGE>
THE CHASE MANHATTAN BANK, as Trustee
By_______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By ________________________________
as Authenticating Agent
By _______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited, Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series and with all other unsecured and unsubordinated debt of the
Issuer. There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to rather than set forth
in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, on which any such interest shall be payable and on which a
<PAGE>
record shall be taken for the determination of Holders to whom any such
interest is payable or the method by which such rate or rates or date or
dates shall be determined or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series
shall be payable (if other than as provided in Section 3.2) and the office
or agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices (or the method by
which such price or prices shall be determined or both) at which, the form
or method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series may be so redeemed,
purchased or repaid, in whole or in part, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor if
other than in cash and any terms and conditions upon which and the manner
in which (if different from the provisions of Article Twelve) Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(13) any deleted, modified or additional events of default or
remedies or any deleted, modified or additional covenants with respect to
the Securities of such series;
<PAGE>
(14) whether the provisions of Section 10.1(C) will be applicable to
Securities of such series;
(15) any provision relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrete, if any, and the date or dates from or to which or
period or periods during which such original issue discount shall accrete
at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities
of such series shall be payable;
(17) if other than The Chase Manhattan Bank is to act as Trustee for
the Securities of such series, the name and Corporate Trust Office of such
Trustee;
(18) if the amounts of payments of principal of, premium, if any,
and interest, if any, on the Securities of such series are to be
determined with reference to an index, the manner in which such amounts
shall be determined;
(19) the terms for conversion or exchange, if any, with respect to
the Securities of such series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to
the Board Resolution or Officers' Certificate referred to above or as set forth
in any such indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officers' Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above with
respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate, if any, and any other terms of the Securities of such series shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures and agreed to by the Trustee, such Issuer Order may
<PAGE>
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating the Securities of such series and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (2), (3) and (4) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a
series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates, if any, and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures, (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued, any
separate request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a certification by
the Issuer that it is in compliance with all conditions precedent provided
for in this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely
on an Opinion of Counsel, substantially to the effect that:
(a) 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
<PAGE>
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, any judgment, order or decree of any
governmental agency or any court having jurisdiction over the Issuer
or any Subsidiary of the Issuer, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Issuer of its obligations under the Securities,
except such as are specified and have been obtained and such as may
be required by the securities or blue sky laws of the various states
in connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, such Opinion of Counsel
shall also state that 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
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.
<PAGE>
The Trustee shall have the right to decline to authenticate and deliver
any Securities of any series under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by
the Issuer or if the Trustee in good faith by its board of directors or board
of trustees, executive committee or a trust committee of directors or trustees
or Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance with this Section
2.4 and the Issuer Order with respect to such series, authenticate and deliver
one or more Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities
of such series to be issued in the form of Global Securities and not yet
cancelled, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions, and (iv) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and
any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
<PAGE>
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to
the Securities of any series, if not so established, in denominations of $1,000
and any integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
<PAGE>
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other than
a Global Security, except as set forth below) may be exchanged for a Security
or Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Securities to be exchanged
at the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a part of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series represented
by one or more Global Securities notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under Section 2.4,
the Issuer shall appoint a successor Depositary with respect to such
Securities. If a successor Depositary for such Securities is not appointed by
the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.3 that
<PAGE>
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of
the Issuer. The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
<PAGE>
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and
upon the written request of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate, if
any, and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any
agent of the Issuer or the Trustee such security or indemnity as may be
required by the Trustee or the Issuer or any such agent to indemnify and defend
and to save each of the Trustee and the Issuer and any such agent harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security and of the ownership thereof
and in the case of mutilation or defacement, shall surrender the Security to
the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall
be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced, destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without their
surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly
<PAGE>
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.
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
<PAGE>
transfer and for exchange as provided in this Indenture, and an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. In case the Issuer shall at any
time fail to maintain any such office or agency, or shall fail to give notice
to the Trustee of any change in the location thereof, presentation may be made
and notice and demand may be served in respect of the Securities or of this
Indenture at the Corporate Trust Office. The Issuer hereby initially
designates the Corporate Trust Office for each such purpose and appoints the
Trustee as registrar and paying agent and as the agent upon whom notices and
demands may be served with respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of
any claim for interest on any of the Securities and will not directly or
indirectly be a party to or approve any such arrangement by the purchase or
funding of said claims or in any other manner; provided, however, that this
Section 3.3 shall not apply in any case where an extension shall be made
pursuant to a plan proposed by the Issuer to the Holders of all Securities of
any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for
the payment of the principal of or interest, if any, on the Securities
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities) in trust for the benefit of the Holders of the
Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any payment of
the principal of, premium, if any, or interest, if any, on the Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuer (or by any other
obligor under the Securities) to make any payment of the principal of, premium,
if any, or interest, if any, on the Securities when the same shall become due
and payable.
<PAGE>
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will, on
or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
SECTION 3.6 Limitation on Liens. So long as any of the Securities are
Outstanding, the Issuer will not, and will not permit any Restricted Subsidiary
to, pledge, mortgage, hypothecate or grant a security interest in, or permit
any mortgage, pledge, security interest or other lien upon, any property or
assets owned by the Issuer or any Restricted Subsidiary to secure any
Indebtedness, without making effective provision whereby the Securities then
Outstanding shall (so long as such other Indebtedness shall be so secured) be
equally and ratably secured with any and all such other Indebtedness and any
other indebtedness similarly entitled to be equally and ratably secured;
provided, however, that this restriction shall not apply to nor prevent the
creation or existence of:
(a) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets created at the time of the acquisition of such
property or assets by the Issuer or any Restricted Subsidiary or within
one year after such time to secure all or a portion of the purchase price
for such property or assets;
(b) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets existing thereon at the time of the
acquisition thereof by the Issuer or any Restricted Subsidiary (whether or
not the obligations secured thereby are assumed by the Issuer or any
Subsidiary of the Issuer);
(c) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets, whenever acquired, of any corporation or
other entity that becomes a Restricted Subsidiary after the date hereof,
provided that (i) the instrument creating such mortgage, pledge, security
interest, lien or encumbrance shall be in effect prior to the time such
corporation or other entity becomes a Restricted Subsidiary and (ii) such
mortgage, pledge, security interest, lien or encumbrance shall only apply
to properties or assets owned by such corporation or other entity at the
time it becomes a Restricted Subsidiary or thereafter acquired by it from
sources other than the Issuer or another Restricted Subsidiary;
(d) any mortgage, pledge, security interest, lien or encumbrance
arising from or in connection with a conveyance by the Issuer or a
Restricted Subsidiary of any production payment with respect to oil, gas,
<PAGE>
natural gas, carbon dioxide, sulphur, helium, coal, metals, minerals,
steam, timber or other natural resources;
(e) any mortgage, pledge, security interest, lien or encumbrance
with respect to, or other transfer of, crude oil, natural gas or other
petroleum hydrocarbons in place for a period of time until, or in an
amount such that, the transferee will realize therefrom a specified amount
(however determined) of money or of such crude oil, natural gas or other
petroleum hydrocarbons;
(f) any mortgage, pledge, security interest, lien or encumbrance
required by any contract or statute in order to permit the Company or any
Restricted Subsidiary to perform any contract or subcontract made by it
with or at the request of the United States or any State thereof or any
foreign government or any department, agency, organization or
instrumentality thereof, or to secure partial, progress, advance or other
payments to the Company or any Restricted Subsidiary by such governmental
unit pursuant to the provisions of any contract or statute;
(g) any mortgage, pledge, security interest, lien or encumbrance in
favor of the Issuer or any wholly-owned Subsidiary of the Issuer;
(h) any mortgage, pledge, security interest, lien or encumbrance
created or assumed by the Issuer or a Restricted Subsidiary in connection
with the issuance of debt securities the interest on which is excludable
from gross income of the holder of such security pursuant to the Internal
Revenue Code of 1986, as amended, for the purpose of financing, in whole
or in part, the acquisition or construction of property or assets to be
used by the Issuer or a Subsidiary of the Issuer;
(i) any extension, renewal or refunding of any mortgage, pledge,
security interest, lien or encumbrance permitted by the foregoing
subparagraphs (a) through (h) above on substantially the same property or
assets theretofore subject thereto; or
(j) any mortgage, pledge, security interest, lien or encumbrance
securing any Indebtedness in an amount which, together with all other
Indebtedness secured by a mortgage, pledge, security interest, lien or
encumbrance that is not otherwise permitted by the provisions of this
Section 3.6, does not at the time of the incurrence of the Indebtedness so
secured exceed 20% of Consolidated Net Tangible Assets.
In case the Issuer or any Restricted Subsidiary shall propose to pledge,
mortgage, hypothecate or grant a security interest in any property or assets
owned by the Issuer or any Restricted Subsidiary to secure any Indebtedness,
other than as permitted by subdivisions (a) to (j), inclusive, of this Section
3.6, the Issuer will prior thereto give written notice thereof to the Trustee,
and the Issuer will, or will cause such Restricted Subsidiary to, prior to or
simultaneously with such pledge, mortgage, hypothecation or grant of security
interest, by supplemental indenture executed to the Trustee (or to the extent
legally necessary to another trustee or additional or separate trustee), in
form satisfactory to the Trustee, effectively secure (for so long as such other
Indebtedness shall be so secured) all the Securities equally and ratably with
such Indebtedness and with any other indebtedness similarly entitled to be
equally and ratably secured. Such supplemental indenture shall contain the
provisions concerning the possession, control, release and substitution of
mortgaged and pledged property and securities and other appropriate matters
<PAGE>
which are required by the Trust Indenture Act of 1939 (as in effect at the date
of execution of such supplemental indenture) to be included in a secured
indenture qualified under the Trust Indenture Act of 1939, and may also contain
such additional and amendatory provisions permitted by the Trust Indenture Act
of 1939 as the Issuer and the Trustee shall deem advisable or appropriate or as
the Trustee shall deem necessary in connection with such pledge, mortgage,
hypothecation or grant of security interest.
For the purpose of this Section 3.6, "security interest" shall include the
interest of the lessor under a lease with a term of three years or more that
should be, in accordance with generally accepted accounting principles,
recorded as a capital lease, and any such lease of property or assets not
acquired from the Issuer or any Restricted Subsidiary in contemplation of such
lease shall be treated as though the lessee had purchased such property or
assets from the lessor.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
<PAGE>
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.2 a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series
or of all Securities, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection
(b) of this Section 4.2, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
<PAGE>
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer
is not required to file information, documents or reports pursuant to either of
such Sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act, in respect of a debt
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided
in Section 4.4(c), such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections (a) and (b) of this
Section 4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his knowledge of the Issuer's compliance
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act of 1939 with respect to any 12
month period, such report shall cover the 12 month period ending July 15 and
shall be transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
<PAGE>
(a) default in the payment of the principal of or premium, if any,
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(b) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as
and when such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture continued for a period of
90 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given by certified or registered
mail to the Issuer by the Trustee, or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Securities of
such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any
applicable bankruptcy, insolvency or other similar law of the Cayman
Islands, or without the consent of the Issuer a court having jurisdiction
shall enter a judgment, order or decree adjudging the Issuer a bankrupt or
insolvent, or enter an order for relief for reorganization, arrangement,
adjustment or composition of or in respect of the Issuer under any
applicable bankruptcy, insolvency or other similar law of the Cayman
Islands, and the continuance of any such judgment, order or decree is
unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, or for an
adjudication of insolvency, or shall consent to the institution of
bankruptcy or insolvency proceedings against it, or shall file a petition
seeking, or seek or consent to reorganization, arrangement, composition or
relief under any applicable bankruptcy, insolvency or other similar law of
the Cayman Islands, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or of substantially all of
its property, or the Issuer shall make a general assignment for the
benefit of creditors as recognized under any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money borrowed by the
Issuer, whether such Indebtedness exists on the date hereof or shall
hereafter be created, which default shall have resulted in such
Indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, or any default in
payment of such Indebtedness (after the expiration of any applicable grace
periods and the presentation of any debt instruments, if required), if the
<PAGE>
aggregate amount of all such Indebtedness that has been so accelerated and
with respect to which there has been such a default in payment shall
exceed $20,000,000, without each such default and acceleration having been
rescinded or annulled within a period of 20 days after there shall have
been given by certified or registered mail to the Issuer by the Trustee,
or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then
Outstanding, a written notice specifying each such default and requiring
the Issuer to cause each such default and acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities
of such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision,
however, is subject to the condition that, if at any time after the unpaid
principal amount (or such specified amount) of the Securities of such series
shall have been so declared due and payable and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, upon all of
the Securities of such series and the principal of any and all Securities of
such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, if any, to the extent that
payment of such interest is enforceable under applicable law and on such
principal at the rate borne by the Securities of such series to the date of
such payment or deposit) and the reasonable compensation, disbursements,
expenses and advances of the Trustee and all other amounts due the Trustee
under Section 6.6, and any and all defaults under this Indenture, other than
the nonpayment of such portion of the principal amount of and accrued interest,
if any, on Securities of such series which shall have become due by
acceleration, shall have been cured or shall have been waived in accordance
with Section 5.7 or provision deemed by the Trustee to be adequate shall have
been made therefor, then and in every such case the Holders of a majority in
aggregate principal amount of the Securities of such series then Outstanding,
by written notice to the Issuer and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default specified in Section 5.1(e) or
5.1(f) occurs with respect to the Issuer, all unpaid principal amount (or, if
the Securities of any series then Outstanding are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of each such series) and accrued interest on all Securities of each
series then Outstanding shall ipso facto become and be immediately due and
<PAGE>
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Issuer, the Trustee and the Securityholders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment
of interest upon any of the Securities of any series then Outstanding as and
when the same shall become due and payable, and such default shall have
continued for a period of 60 days, or (b) if default shall be made in the
payment of the principal of any of the Securities of such series as and when
the same shall have become due and payable, whether at maturity of the
Securities of such series or upon redemption or by declaration or otherwise,
then, upon demand of the Trustee, the Issuer will pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities of such series for principal or
interest, if any, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest, if any, at the rate
borne by the Securities of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder
other than through its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
<PAGE>
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other
obligor on the Securities of such series, its or their creditors, or its or
their property, and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses, and any receiver, assignee or trustee or
similar official in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and, if the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due it for compensation and
expenses or otherwise pursuant to Section 6.6, including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent
that such payment of reasonable compensation, expenses and counsel fees and
expenses out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, moneys, securities and other
property which the Holders of the Securities of such series may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee pursuant to Section 6.6 except as a result of its
negligence or bad faith;
SECOND: If the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of
interest, if any, on the Securities of such series, in the order of the
maturity of the installments of such interest, if any, with interest (to
the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest, if any, at the rate borne by the
Securities of such series, such payment to be made ratably to the Persons
entitled thereto;
<PAGE>
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series for
principal and interest, if any, with interest on the overdue principal and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the rate borne by the
Securities of such series; and in case such moneys shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Securities of
such series, then to the payment of such principal and interest, if any,
without preference or priority of principal over interest or of interest
over principal, or of any installment of interest over any other
installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid
interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Securities to which it
relates, or which in any manner shall have been kept alive after maturity by an
extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the
consent or approval of the Issuer shall be entitled, in case of a default
hereunder, to any benefit of this Indenture, except after prior payment in full
of the principal of all Securities of any series then Outstanding and of all
claims for interest not so transferred, pledged, kept alive, extended,
purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the Holder of every
Security of such series with every other Holder and the Trustee, that no one or
more Holders of Securities of such series shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture or of
the Securities to affect, disturb or prejudice the rights of any other Holder
of such Securities of such series, or to obtain or seek to obtain priority over
or preference as to any other such Holder, or to enforce any right under this
Indenture or the Securities, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
<PAGE>
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of, premium,
if any, and interest, if any, on such Security, on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates shall not be impaired or
affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of
the Securities of any series then Outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon advice
of counsel that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors, its executive
committee, or a trust committee of directors or Responsible Officers or both
shall determine that the action or proceeding so directed would involve the
Trustee in personal liability. The Holders of a majority in aggregate
principal amount of the Securities of any series then Outstanding may on behalf
of the Holders of all of the Securities of such series waive any past default
or Event of Default hereunder and its consequences except a default in the
payment of interest, if any, on, or the principal of, the Securities of such
series. Upon any such waiver the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.7, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
<PAGE>
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of
all defaults known to the Trustee with respect to such series, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 5.8 being hereby defined to be the
events specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of
Section 5.1, not including periods of grace, if any, provided for therein and
irrespective of the giving of the written notice specified in said clause (d)
or (g) but in the case of any default of the character specified in said clause
(d) or (g) no such notice to Securityholders shall be given until at least 60
days after the giving of written notice thereof to the Issuer pursuant to said
clause (d) or (g), as the case may be); provided, however, that, except in the
case of default in the payment of the principal of or interest, if any, on any
of the Securities, or in the payment or satisfaction of any sinking fund or
other purchase obligation, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or Responsible Officers or both of the Trustee in
good faith determines that the withholding of such notice is in the best
interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the cost of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding in the aggregate
more than 10% in principal amount of the Securities of any series then
Outstanding, or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of or interest, if any, on any
Security against the Issuer on or after the due date expressed in such
Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
<PAGE>
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.7 relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Issuer
Order (unless other evidence in respect thereof be herein specifically
<PAGE>
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any advice
of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the
Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of
the Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
<PAGE>
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, of the
Securities or of any prospectus used to sell the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to
in writing between the Issuer and the Trustee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of the
Trustee), incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim or liability in the
premises. The obligations of the Issuer under this Section 6.6 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Securities, and the Securities are hereby subordinated to such
senior claim. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1 or in connection
with Article Five hereof, the expenses (including the reasonable fees and
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expenses of its counsel) and the compensation for the service in connection
therewith are intended to constitute expenses of administration under any
bankruptcy law. The provisions of this Section 6.6 shall survive the
resignation or removal of the Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act of 1939 regarding disqualification of
a trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any state or the District
of Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. No obligor upon the Securities or any Affiliate of such obligor
shall serve as trustee upon the Securities. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.9, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
A different Trustee may be appointed by the Issuer for each series of
Securities prior to the issuance of such Securities. If the initial Trustee
for any series of Securities is to be a trustee other than The Chase Manhattan
Bank, the Issuer and such Trustee shall, prior to the issuance of such
Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of
such series and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
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SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.9, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 6.8
with respect to any series of Securities after written request therefor by
the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Article Five, any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
<PAGE>
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
<PAGE>
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer
fails to give such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to the Trustee's Certificate of Authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any state
<PAGE>
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees
to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any Authenticating
Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
<PAGE>
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged
to him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate
<PAGE>
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security provided that such revocation shall not become
effective until three Business Days after such filing. Except as aforesaid,
any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution therefor or
on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of
the Indenture or (iii) waive compliance with any term, condition or provision
of any covenant hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and any such Persons, shall be
entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically
and, without further action by any Holder be cancelled and of no further
effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another to the Issuer, or
successive successions, and the assumption by the successor Person of the
<PAGE>
covenants, agreements and obligations of the Issuer pursuant to Article
Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions
are to be for the protection of less than all series of Securities,
stating that the same are expressly being included solely for the
protection of such series), and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the
Trustee upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may
deem necessary or desirable, provided, however, that no such action shall
materially adversely affect the interests of the Holders of the
Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities for the Securities issued
hereunder in fully registered form and to make all appropriate changes for
such purpose;
(g) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act of 1939, or under any similar
federal statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act of
1939, excluding, however, the provisions referred to in Section 316(a)(2)
of the Trust Indenture Act of 1939 as in effect at the date as of which
this instrument was executed or any corresponding provision provided for
in any similar federal statute hereafter enacted;
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Chase Manhattan Bank as Trustee for
a series of Securities and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.9 hereof;
<PAGE>
(i) subject to Section 8.2 hereof, to add to or modify the
provisions hereof as may be necessary or desirable to provide for the
denomination of Securities in foreign currencies which shall not adversely
affect the interests of the Holders of the Securities in any material
respect;
(j) to modify the covenants or Events of Default of the Issuer
solely in respect of, or add new covenants or Events of Default of the
Issuer that apply solely to, Securities not Outstanding on the date of
such supplemental indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities
then Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental indenture
shall (a) extend the stated final maturity of the principal of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accretion of original issue discount
thereon), or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Issuer thereof (or the time at which
any such redemption, repayment or purchase may be made), or make the principal
thereof (including any amount in respect of original issue discount), or
interest, if any, thereon payable in any coin or currency other than that
provided in the Securities or in accordance with the terms of the Securities,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant
<PAGE>
to Section 5.2, or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment or purchase at the option of the Securityholder, in each
case without the consent of the Holder of each Security so affected, or (b)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected. No consent of any Holder
of any Security shall be necessary under this Section 8.2 to permit the Trustee
and the Issuer to execute supplemental indentures pursuant to Sections 8.1 and
9.2.
A supplemental indenture which changes or eliminates any covenant, Event
of Default or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as
aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may at
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to
give such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and shall be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
<PAGE>
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with
the applicable provisions of this Indenture and that all conditions precedent
to the execution and delivery of such supplemental indenture have been
satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may
bear a notation in form approved by the Trustee for such series as to any
matter provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the Issuer, and
such Securities may be authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer),
or successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia
or the Cayman Islands or any political subdivision thereof; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property.
<PAGE>
SECTION 9.2 Successor Corporation to be Substituted. In case of any such
consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, by supplemental indenture executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest, if any, on all of
the Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a sale,
lease, exchange or other disposition of the property and assets of the Issuer
(including any such intervening successor), the Issuer (including any such
intervening successor) shall continue to be liable on its obligations under
this Indenture and the Securities to the extent, but only to the extent, of
liability to pay the principal of, premium, if any, and interest, if any, on
the Securities at the time, places and rate prescribed in this Indenture and
the Securities. Such successor Person thereupon may cause to be signed, and
may issue either in its own name or in the name of the Issuer, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Issuer and delivered to the Trustee; and, upon the order of such
successor Person instead of the Issuer and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation or merger or any sale, lease, exchange
or other disposition of all or substantially all of the property and assets of
the Issuer, such changes in phraseology and form (but not in substance) may be
made in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee, subject
to Sections 6.1 and 6.2, shall receive an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
lease, exchange or other disposition and any such assumption complies with the
provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance.
(A) If at any time (a) the Issuer shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or stolen
<PAGE>
and which have been replaced or paid as provided in Section 2.9) as and when
the same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities theretofore
authenticated (other than Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9); and if, in
any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer (including all amounts, payable to the Trustee
pursuant to Section 6.6), then this Indenture shall cease to be of further
effect, and the Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the satisfaction and discharge contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction and
discharging this Indenture. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred, and to
compensate the Trustee for any services thereafter reasonably and properly
rendered, by the Trustee in connection with this Indenture or the Securities.
(B) If at any time (a) the Issuer shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
of any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities
with respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or by their terms are to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
Securities of such series, cash in an amount (other than moneys repaid by the
Trustee or any paying agent to the Issuer in accordance with Section 10.4) or
non-callable, non-prepayable bonds, notes, bills or other similar obligations
issued or guaranteed by the United States government or any agency thereof the
full and timely payment of which are backed by the full faith and credit of the
United States ("U.S. Government Obligations"), maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (1) the
principal of, premium, if any, and interest, if any, on all Securities of such
series on each date that such principal of, premium, if any, or interest, if
any, is due and payable, and (2) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series; then the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such series on the date of the deposit referred to in clause (ii)
above and the provisions of this Indenture with respect to the Securities of
such series shall no longer be in effect (except, in the case of clause (c) of
this Section 10.1(B), as to (i) rights of registration of transfer and exchange
of Securities of such series, (ii) rights of substitution of mutilated,
<PAGE>
defaced, destroyed, lost or stolen Securities of such series, (iii) rights of
Holders of Securities of such series to receive payments of principal thereof
and premium, if any, and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
of Securities of such series to receive mandatory sinking fund payments
thereon, if any, when due, (iv) the rights, obligations, duties and immunities
of the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2 with respect to Securities of such series) and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent contemplated by
this provision have been complied with, and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging the same.
(C) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series on the 91st day after the date of the deposit
referred to in subparagraph (a) below, and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of Securities
of such series, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of Securities of such
series to receive payments of principal thereof, premium, if any, and interest,
if any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2 with respect to Securities
of such series) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with,
and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay (A) the principal of, premium, if any, and interest, if any, on all
Securities of such series on each date that such principal or interest, if
any, is due and payable, and (B) any mandatory sinking fund payments on
the dates on which such payments are due and payable in accordance with
the terms of the Indenture and the Securities of such series;
<PAGE>
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y), since the date
hereof, there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(D) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to the foregoing, in the case of any series of Securities with
respect to which the exact amount described in subparagraph (a) below can be
determined at the time of making the deposit referred to in such subparagraph
(a), the Issuer shall be deemed to be, and shall be, released from its
obligations under Section 3.6 hereof on the 91st day after the date of the
deposit referred to in subparagraph (a) below, and the Issuer's obligations
under all Securities of such series and this Indenture with respect to Section
3.6 hereof shall thereafter be deemed to be discharged for the purposes of any
direction, waiver, consent or declaration (and the consequences of any thereof)
in connection therewith but shall continue in full force and effect for all
other purposes hereunder, and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with,
and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay (A) the principal of, premium, if any, and interest, if any, on all
Securities of such series on each date that such principal or interest, if
any, is due and payable, and (B) any mandatory sinking fund payments on
the dates on which such payments are due and payable in accordance with
the terms of the Indenture and the Securities of such series; and
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
<PAGE>
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 10.1 shall be held
in trust, and such moneys and all moneys from such U.S. Government Obligations
shall be applied by it to the payment, either directly or through any paying
agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series for the payment or redemption of which
such moneys and U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any, but such moneys and U.S. Government Obligations need not be segregated
from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of, premium, if any, or interest, if
any, on any Security of any series and not applied but remaining unclaimed for
two years after the date upon which such principal, premium, if any, or
interest, if any, shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent, and the Holder of
the Securities of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, or any partner of the
<PAGE>
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee)
to Triton Energy Limited, Caledonian House, Mary Street, P.O. Box 1043, George
Town, Grand Cayman, Cayman Islands. Any notice, direction, request or demand
by the Issuer or any Holder of Securities to or upon the Trustee shall be
deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with
the Issuer) to The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New
York, New York 10001, Attention: Corporate Trust Department.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
<PAGE>
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than a
certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement
as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of principal of or interest, if any, on the Securities of any
series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any,
premium, if any, or principal need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
<PAGE>
the date of maturity or the date fixed for redemption, purchase or repayment,
and, in the case of payment, no interest shall accrue for the period after such
date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, or
is deemed applicable to this Indenture by virtue of the provisions of the Trust
Indenture Act of 1939, such required provision shall control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Submission to Jurisdiction. The Issuer hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and of the
courts of the United States of America having jurisdiction in the State of New
York for the purpose of any legal action or proceeding in any such court with
respect to, or arising out of, this Indenture or the Securities. The Issuer
designates and appoints Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: Robert B. Holland,
III and its successors as its lawful agent in the United States of America upon
which may be served, and which may accept and acknowledge, for and on behalf of
the Issuer all process in any action, suit or proceedings that may be brought
against the Issuer in any of the courts referred to in this Section, and agrees
that such service of process, or the acceptance or acknowledgment thereof by
said agent, shall be valid, effective and binding in every respect; provided
however, that if said agency shall cease for any reason whatsoever, the Issuer
hereby designates and appoints, without power of revocation, the Secretary of
State of the State of New York to serve as its agent for service of process.
Nothing contained in this Section 11.9 shall limit the right of the Holders of
the Securities or any of them to take proceedings against the Issuer in any
other court of competent jurisdiction no, by virtue of anything contained
herein, shall the taking of proceedings in one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction whether concurrently or
not.
SECTION 11.10 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
<PAGE>
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest,
if any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount)
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.5) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 45 days prior to
the date fixed for redemption (unless a shorter notice period shall be
satisfactory to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
<PAGE>
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount), on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier
date shall be specified in a Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the form and terms of the Securities of such series were
established) except as provided in Sections 6.5 and 10.4, to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest, if any, to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment
specified in said notice, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest, if any, accrued thereon to the date fixed for
redemption; provided that payment of interest, if any, becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the redemption price shall, until paid or duly provided
for, bear interest from the date fixed for redemption at the rate of interest
or Yield to Maturity (in the case of an Original Issue Discount Security) borne
by such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Issuer, a new Security or Securities
of such series, and of like tenor, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer, or (b) a Person specifically identified in such written
statement as an Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any
<PAGE>
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured or otherwise ceased to exist) and are continuing, and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such 60th day, to
deliver such Officers' Certificate and Securities (subject to the parenthetical
clause in the second preceding sentence) specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof, and (ii) that the Issuer will
make no optional sinking fund payment with respect to such series as provided
in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
<PAGE>
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given
in substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section 12.5. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest, if any, on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest, if
any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default known to a Responsible Officer of the Trustee
shall occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to have
been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 5.7 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of _________ __, 199__.
<PAGE>
TRITON ENERGY LIMITED
By:
Title:
-------------------------------
Attest:
By:
Title:
-------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
Title:
-------------------------------
Attest:
By:
Title:
-------------------------------<PAGE>
CROSS REFERENCE SHEET*
___________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
___________ __, 199__ between TRITON ENERGY LIMITED and THE CHASE MANHATTAN
BANK, Trustee:
Section of the Act Section of
Indenture
310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 and
6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and
(b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i),
(ii), (iii), (iv), (v), (vi) and (vii)
313(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
_____________________
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS . . . . . . . . . . . . . . 1
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 . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 7
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . . 7
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . 7
<PAGE>
SECTION 2.3 Amount Unlimited, Issuable in Series . . . . . . . . 8
SECTION 2.4 Authentication and Delivery of Securities . . . . . . 10
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . 13
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . 13
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . 14
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . 17
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . 18
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE
COVENANTS OF THE ISSUER. . . . . . . . . . . . 18
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . 18
SECTION 3.2 Offices for Notices and Payments, etc . . . . . . . . 18
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
SECTION 3.6 Limitation on Liens . . . . . . . . . . . . . . . . . 20
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE . . . . . . . . . . . . 22
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders . . . . . . . . 22
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . 23
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . 24
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . . 24
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . 24
SECTION 5.2 Payment of Securities on Default; Suit Therefor . . . 27
SECTION 5.3 Application of Moneys Collected by Trustee . . . . . 28
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . 29
SECTION 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . 30
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . 30
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders . . . . . . . . . . . 30
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . 31
SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . 31
ARTICLE SIX
CONCERNING THE TRUSTEE . . . . . . . . . . . . 31
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 . . . . . . . . . . . . . . . . . . . . . 34
<PAGE>
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc . . . . . . . . . . . . . . . . 34
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . 34
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim . . . . . . . . . . . . . . . . . 34
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . 35
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series. . . . . 35
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . 37
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee . . . . . . . . . . . . . 38
SECTION 6.13 Preferential Collection of Claims Against the
Issuer . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . 38
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS . . . . . . . . . 39
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 . . . . . . . . . . . 40
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . 40
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . 40
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . . 41
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . 41
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . 41
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . . . 43
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . 44
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . 45
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . 45
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION. . . . . . . . . . . . . . . 45
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms . . . 45
SECTION 9.2 Successor Corporation to be Substituted . . . . . . . 46
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . . . 46
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS . . . . . . . . 46
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance . . . . . . . . . . . . . . . . . . . 46
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities . . . . . . . . . . . . . . 50
<PAGE>
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . 50
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . . 50
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . 50
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . 50
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability . . . . . . . . . . . . . . 50
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities . . . . . . . . 51
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities . . . . . . . . . . . . . . 51
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . 51
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . 52
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . 53
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . . 53
SECTION 11.9 Submission to Jurisdiction . . . . . . . . . . . . . 53
SECTION 11.10 Counterparts . . . . . . . . . . . . . . . . . . . 53
SECTION 11.11 Effect of Headings . . . . . . . . . . . . . . . . 53
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS. . . . . . . . 53
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . 53
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . 54
SECTION 12.3 Payment of Securities Called for Redemption . . . . 55
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption . . . . . . . . . . 55
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . . . 55
<PAGE>
TRITON ENERGY LIMITED
AND
THE CHASE MANHATTAN BANK,
as Trustee
Form of Senior Indenture
Dated as of _________ __, 199_
EXHIBIT 4.6
FORM OF SENIOR SUBORDINATED INDENTURE
FORM OF SENIOR SUBORDINATED INDENTURE, dated as of __________ __, 1996
between TRITON ENERGY LIMITED, a Cayman Islands company (the "Issuer"), and
UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation as trustee (the
"Trustee").
W I T N E S S E T H :
-------------------
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured senior subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture; and
WHEREAS, the Issuer 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 on the date of this
Indenture.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
<PAGE>
delivery of this Indenture" and other expressions of similar import refer to
the effective date of the original execution and delivery of this Indenture,
viz. as of ____________ __, _________.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"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.
<PAGE>
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and, if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Global
Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person, means, without duplication:
(a) (i) the principal of and premium, if any, and interest,
if any, on indebtedness for money borrowed of such Person,
indebtedness of such Person evidenced by bonds, notes, debentures
or similar obligations, and any guaranty by such Person of any
indebtedness for money borrowed or indebtedness evidenced by bonds,
notes, debentures or similar obligations of any other Person,
whether any such indebtedness or guaranty is outstanding on the
date of this Indenture or is thereafter created, assumed or
incurred, (ii) obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction; (iii) the principal of and premium, if any, and
interest, if any, on indebtedness incurred, assumed or guaranteed
by such Person in connection with the acquisition by it or any of
its subsidiaries of any other businesses, properties or other
assets; (iv) lease obligations which such Person 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; (v) any indebtedness of such Person representing
the balance deferred and unpaid of the purchase price of any
property or interest therein (except any such balance that
constitutes an accrued expense or trade payable) and any guaranty,
endorsement or other contingent obligation of such Person in
respect of any indebtedness of another that is outstanding on the
date of this Indenture or is thereafter created, assumed or
incurred by such Person; and (vi) obligations of such Person under
interest rate, commodity or currency swaps, caps, collars, options
<PAGE>
and similar arrangements if and to the extent that any of the
foregoing indebtedness in (i) through (vi) would appear as a
liability on the balance sheet of such Person in accordance with
generally accepted accounting principles;
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clause (a) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether
at stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer, and delivered to the
Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer
of the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required by the provisions of such Section
11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
<PAGE>
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held
in trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided that, if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof.
<PAGE>
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of
this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other
than an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was
an Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Issuer (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that the Issuer may not designate any such Subsidiary to be
a Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding
Indebtedness of such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at
any time (other than the Indebtedness evidenced by the Securities of any
series) except (a) any Indebtedness as to which, by the terms of the instrument
creating or evidencing such Indebtedness, it is provided that such Indebtedness
is not senior or prior in right of payment to the Securities or is pari passu
or subordinate by its terms in right of payment to the Securities, (b)
renewals, extensions and modifications of any such Indebtedness, (c) any
Indebtedness of the Issuer to a wholly-owned Subsidiary of the Issuer, (d)
interest accruing after the filing of a petition initiating any proceeding
referred to in Sections 5.1(e) and 5.1(f) unless such interest is an allowed
claim enforceable against the Issuer in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
"Senior Subordinated Indebtedness" means the Securities and any other
Indebtedness of the Issuer that ranks pari passu with the Securities. Any
Indebtedness of the Issuer that is subordinate or junior by its terms in right
of payment to any other Indebtedness of the Issuer shall be subordinate to
Senior Subordinated Indebtedness unless the instrument creating or evidencing
<PAGE>
the same or pursuant to which the same is outstanding specifically provides
that such Indebtedness (i) is to rank pari passu with other Senior Subordinated
Indebtedness and (ii) is not subordinated by its terms to any Indebtedness of
the Issuer which is not Senior Indebtedness.
"Subordinated Indebtedness" means the Securities, any other Senior
Subordinated Indebtedness and any other Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness.
"Subsidiary" of any specified Person means any corporation of which
such Person, or such Person and one or more Subsidiaries of such Person, or any
one or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this
Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer
acquired or organized after the date hereof, provided, however, that such
Subsidiary of the Issuer shall not be a successor, directly or indirectly, to
any Restricted Subsidiary, and (b) any Subsidiary of the Issuer substantially
all the assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the Issuer 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.
<PAGE>
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The 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.
UNITED STATES TRUST COMPANY OF NEW YORK, 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.
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
<PAGE>
SECTION 2.3 Amount Unlimited Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities
of each such series shall rank equally and pari passu with the Securities of
each other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in
Article Thirteen, to all Senior Indebtedness of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and, to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officers' Certificate detailing such establishment) or established in one or
more indentures supplemental hereto, prior to the initial issuance of
Securities of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record
shall be taken for the determination of Holders to whom any such interest
is payable or the method by which such rate or rates or date or dates shall
be determined or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series
shall be payable (if other than as provided in Section 3.2) and the office
or agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period
or periods within which, the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or method
of payment therefor if other than in cash and any terms and conditions upon
which and the manner in which (if different from the provisions of Article
Twelve) Securities of the series may be so redeemed, purchased or repaid,
in whole or in part pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which the price or prices
(or the method by which such price or prices shall be determined or both)
at which, the form or method of payment therefor if other than in cash and
any terms and conditions upon which and the manner in which (if different
<PAGE>
from the provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(13) any deleted, modified or additional events of default or remedies
or any deleted, modified or additional covenants with respect to the
Securities of such series;
(14) whether the provisions of Section 10.1(C) will be applicable to
Securities of such series;
(15) any provision relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrete, if any, and the date or dates from or to which or
period or periods during which such original issue discount shall accrete
at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities
of such series shall be payable;
(17) if other than United States Trust Company of New York is to act
as Trustee for the Securities of such series, the name and Corporate Trust
Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such series are to be determined
with reference to an index, the manner in which such amounts shall be
determined;
(19) the terms for conversion or exchange, if any, with respect to the
Securities of such series; and
(20) any other terms of the series.
<PAGE>
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before
the initial issuance of the Securities of such series shall be incorporated
herein by reference with respect to Securities of such series and shall
thereafter be deemed to be a part of the Indenture for all purposes relating to
Securities of such series as fully as if such Board Resolution or Officers'
Certificate were set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate, if any, and any other terms of the Securities of such series shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures and agreed to by the Trustee, such Issuer Order may
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating the Securities of such series and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (2), (3) and (4) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by
the Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates, if any, and any other
terms of Securities of such series shall be determined by an Issuer Order
or pursuant to such procedures, (d) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
oral or electronic instructions from the Issuer or its duly authorized
agent or agents, which oral instructions shall be promptly confirmed in
writing and (e) after the original issuance of the first Security of such
series to be issued, any separate request by the Issuer that the Trustee
authenticate Securities of such series for original issuance will be deemed
<PAGE>
to be a certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and terms
of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of the Issuers, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that:
(a) 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 the Securities of such series have been authenticated by the
Trustee in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they will
have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, 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 of the Issuer, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Issuer of its obligations under the Securities,
except such as are specified and have been obtained and such as may be
<PAGE>
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
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."
<PAGE>
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and
any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer, under its
corporate seal which may, but need not, be attested by its secretary or one of
its assistant secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of a seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to
the Securities of any series, if not so established, in denominations of $1,000
and any integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
<PAGE>
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Securities of each series and the registration of transfer
of Securities of such series. Each such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection and available for copying by the
Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
<PAGE>
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities, in exchange for such Global Security
or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
<PAGE>
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of
the Issuer. The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and
upon the written request of any officer of the Issuer, the Trustee shall
authenticate and deliver a new Security of the same series, maturity date,
interest rate, if any, and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as may be required by the Trustee or the Issuer or any such agent to indemnify
and defend and to save each of the Trustee and the Issuer and any such agent
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement, shall surrender
the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee or its agent) connected therewith. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
<PAGE>
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall
dispose of all cancelled Securities in accordance with its standard procedures
and shall deliver a certificate of such disposition to the 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
<PAGE>
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series, unless otherwise established
pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest, if any, on each of the Securities
at the place, at the respective times and in the manner provided in the
Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of
the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, and an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. In case the Issuer shall at any
time fail to maintain any such office or agency, or shall fail to give notice
to the Trustee of any change in the location thereof, presentation may be made
and notice and demand may be served in respect of the Securities or of this
Indenture at the Corporate Trust Office. The Issuer hereby initially
designates the Corporate Trust Office for each such purpose and appoints the
Trustee as registrar and paying agent and as the agent upon whom notices and
demands may be served with respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuer will not
directly or indirectly extend or consent to the extension of the time for the
payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all Securities
of any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
<PAGE>
(1) that it will hold all sums held by it as such paying agent for the
payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and
the Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the
principal of, premium, if any, or interest, if any, on the Securities when
the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuer (or by any other
obligor under the Securities) to make any payment of the principal of, premium,
if any, or interest, if any, on the Securities when the same shall become due
and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will,
on or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
<PAGE>
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
<PAGE>
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection
(b) of this Section 4.2, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe), if any, 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) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this
<PAGE>
Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act of 1939 with respect to any 12
month period, such report shall cover the 12 month period ending July 15 and
shall be transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Thirteen or otherwise), unless
it is either inapplicable to a particular series or it is specifically deleted
or modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and
when such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture continued for a period of 90
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given by certified or registered mail to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities of such series then
Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or without
the consent of the Issuer a court having jurisdiction shall enter a judgment,
order or decree adjudging the Issuer a bankrupt or insolvent, or enter an order
for relief for reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under any applicable bankruptcy, insolvency or other
similar law of the Cayman Islands, and the continuance of any such judgment,
<PAGE>
order or decree is unstayed and in effect for a period of 90 consecutive days;
or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy, insolvency
or other similar law of the Cayman Islands or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or shall
consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of substantially all of its property, or the Issuer shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands;
or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration
of any applicable grace periods and the presentation of any debt instruments,
if required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $20,000,000, without each such default and acceleration having
been rescinded or annulled within a period of 20 days after there shall have
been given by certified or registered mail to the Issuer by the Trustee, or to
the Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities of such series then Outstanding, a written
notice specifying each such default and requiring the Issuer to cause each such
default and acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the Securities
of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities
of such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision,
however, is subject to the condition that, if at any time after the unpaid
principal amount (or such specified amount) of the Securities of such series
shall have been so declared due and payable and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
<PAGE>
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, upon all of
the Securities of such series and the principal of any and all Securities of
such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, if any, to the extent that
payment of such interest is enforceable under applicable law and on such
principal at the rate borne by the Securities of such series to the date of
such payment or deposit) and the reasonable compensation, disbursements,
expenses and advances of the Trustee and all other amounts due the Trustee
under Section 6.6, and any and all defaults under this Indenture, other than
the nonpayment of such portion of the principal amount of and accrued interest,
if any, on Securities of such series which shall have become due by
acceleration, shall have been cured or shall have been waived in accordance
with Section 5.7 or provision deemed by the Trustee to be adequate shall have
been made therefor, then and in every such case the Holders of a majority in
aggregate principal amount of the Securities of such series then Outstanding,
by written notice to the Issuer and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default 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
<PAGE>
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder
other than through its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other
obligor on the Securities of such series, its or their creditors, or its or
their property, and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses, and any receiver, assignee or trustee or
similar official in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and, if the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due it for compensation and
expenses or otherwise pursuant to Section 6.6, including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent
that such payment of reasonable compensation, expenses and counsel fees and
expenses out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, moneys, securities and other
property which the Holders of the Securities of such series may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
<PAGE>
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee pursuant to Section 6.6 except as a result of its negligence
or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of the
installments of such interest, if any, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, if any, at the rate borne by the Securities of
such series, such payment to be made ratably to the Persons entitled
thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series for
principal and interest, if any, with interest on the overdue principal and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the rate borne by the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest, if any, without
preference or priority of principal over interest or of interest over
principal, or of any installment of interest over any other installment of
interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the
consent or approval of the Issuer shall be entitled, in case of a default
hereunder, to any benefit of this Indenture, except after prior payment in full
of the principal of all Securities of any series then Outstanding and of all
claims for interest not so transferred, pledged, kept alive, extended,
purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any
Securities of any series then Outstanding shall have any right by virtue of or
<PAGE>
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee or similar official, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the Holder of every
Security of such series with every other Holder and the Trustee, that no one or
more Holders of Securities of such series shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture or of
the Securities to affect, disturb or prejudice the rights of any other Holder
of such Securities of such series, or to obtain or seek to obtain priority over
or preference as to any other such Holder, or to enforce any right under this
Indenture or the Securities, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Thirteen, the right of any Holder of any Security to receive payment of
the principal of, premium, if any, and interest, if any, on such Security, on
or after the respective due dates expressed in such Security, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee or
the Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority
of Securityholders. The Holders of a majority in aggregate principal amount of
<PAGE>
the Securities of any series then Outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon advice
of counsel that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors, its executive
committee, or a trust committee of directors or Responsible Officers or both
shall determine that the action or proceeding so directed would involve the
Trustee in personal liability. The Holders of a majority in aggregate
principal amount of the Securities of any series then Outstanding may on behalf
of the Holders of all of the Securities of such series waive any past default
or Event of Default hereunder and its consequences except a default in the
payment of interest, if any, on, or the principal of, the Securities of such
series. Upon any such waiver the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.7, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days
after the occurrence of a default, with respect to Securities of any series
then Outstanding, mail to all Holders of Securities of such series, as the
names and the addresses of such Holders appear upon the Securities register,
notice of all defaults known to the Trustee with respect to such series, unless
such defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 5.8 being hereby defined to be the
events specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of
Section 5.1, not including periods of grace, if any, provided for therein and
irrespective of the giving of the written notice specified in said clause (d)
or (g) but in the case of any default of the character specified in said clause
(d) or (g) no such notice to Securityholders shall be given until at least 60
days after the giving of written notice thereof to the Issuer pursuant to said
clause (d) or (g), as the case may be); provided, however, that, except in the
case of default in the payment of the principal of or interest, if any, on any
of the Securities, or in the payment or satisfaction of any sinking fund or
other purchase obligation, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or Responsible Officers or both, of the Trustee in
good faith determines that the withholding of such notice is in the best
interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the cost of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted
<PAGE>
by any Securityholder, or group of Securityholders, holding in the aggregate
more than 10% in principal amount of the Securities of any series then
Outstanding, or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of or interest, if any, on any
Security against the Issuer on or after the due date expressed in such
Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.7 relating to the time, method and place of
<PAGE>
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Issuer
Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
<PAGE>
if paid by the Trustee or any predecessor Trustee, shall be repaid by the
Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) The Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of
the Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, of the
Securities or of any prospectus used to sell the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
<PAGE>
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage,
claim or expense, including taxes (other than taxes based on the income of the
Trustee), incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim or liability in the
premises. The obligations of the Issuer under this Section 6.6 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee and shall not be subordinate to the payment of Senior
Indebtedness pursuant to Article Thirteen. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1 or in
connection with Article Five hereof, the expenses (including the reasonable
fees and expenses of its counsel) and the compensation for the service in
connection therewith are intended to constitute expenses of administration
under any bankruptcy law. The provisions of this Section 6.6 shall survive the
resignation or removal of the Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act of 1939 regarding disqualification of
a trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any state or the District
of Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
<PAGE>
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. No obligor upon the Securities or any Affiliate of such obligor
shall serve as trustee upon the Securities. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.9, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
A different Trustee may be appointed by the Issuer for any series of
Securities prior to the issuance of such Securities. If the initial Trustee
for any series of Securities is to be a trustee other than United States Trust
Company of New York, the Issuer and such Trustee shall, prior to the issuance
of such Securities, execute and deliver an indenture supplemental hereto, which
shall provide for the appointment of such Trustee as Trustee for the Securities
of such series and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
<PAGE>
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Article Five, any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Article Five, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
<PAGE>
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer
fails to give such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
<PAGE>
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is
made in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to the Trustee's Certificate of Authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any state
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees
to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
<PAGE>
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or by any other obligor on the Securities with respect to which such
<PAGE>
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security provided that such revocation shall not become
effective until three Business Days after such filing. Except as aforesaid,
any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution therefor or
on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of
the Indenture or (iii) waive compliance with any term, condition or provision
of any covenant hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and any such Persons, shall be
entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
<PAGE>
record date, any such waiver or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a Board Resolution (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are
to be for the protection of less than all series of Securities, stating that
the same are expressly being included solely for the protection of such series)
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such an
Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall materially adversely
affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in coupon
form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities for the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
<PAGE>
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the Trust Indenture Act of 1939, or under any similar federal statute
hereafter enacted, and to add to this Indenture such other provisions as may be
expressly permitted by the Trust Indenture Act of 1939, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act of 1939
as in effect at the date as of which this instrument was executed or any
corresponding provision provided for in any similar federal statute hereafter
enacted; or
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than United States Trust Company of New York as
Trustee for a series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer 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
<PAGE>
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental indenture
shall (a) extend the stated final maturity of the principal of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accretion of original issue discount
thereon), or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Issuer thereof (or the time at which
any such redemption, repayment or purchase may be made), or make the principal
thereof (including any amount in respect of original issue discount), or
interest, if any, thereon payable in any coin or currency other than that
provided in the Securities or in accordance with the terms of the Securities,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof or
the amount thereof provable in bankruptcy in each case pursuant to Article
Five, or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of
repayment or purchase at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and
the Issuer to execute supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as
aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may at
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to
<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 and executed 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 corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia
or the Cayman Islands or any political subdivision thereof; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, by supplemental indenture executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest, if any, on all of
the Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a sale,
lease, exchange or other disposition of the property and assets of the Issuer
(including any such intervening successor), the Issuer (including any such
intervening successor) shall continue to be liable on its obligations under
this Indenture and the Securities to the extent, but only to the extent, of
liability to pay the principal of 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 principal of, premium, if any, or
<PAGE>
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 Limited, Caledonian House, Mary Street, P.O. Box 1043, George
Town, Grand Cayman, Cayman Islands. 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 United States Trust Company of New York, 114 West 47th Street,
New York, New York 10036, Attention: Corporate Trust Department.
<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 Submission to Jurisdiction. The Issuer hereby
irrevocably submits to the jurisdiction of the courts of the State of New York
and of the courts of the United States of America having jurisdiction in the
State of New York for the purpose of any legal action or proceeding in any such
court with respect to, or arising out of, this Indenture or the Securities.
The Issuer designates and appoints Triton Energy Corporation, 6688 North
Central Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: Robert B.
Holland, III and its successors as the Issuer's lawful agent in the United
States of America upon which may be served, and which may accept and
acknowledge, for and on behalf of the Issuer all process in any action, suit or
proceedings that may be brought against the Issuer in any of the courts
referred to in this Section, and agrees that such service of process, or the
acceptance or acknowledgement thereof by said agent, shall be valid, effective
and binding in every respect; provided, however, that if said agency shall
cease for any reason whatsoever, the Issuer hereby designates and appoints,
without power of revocation, the Secretary of State of the State of New York to
serve as its agent for service of process. Nothing contained in this Section
11.9 shall limit the right of the Holders of the Securities or any of them to
take proceedings against the Issuer in any other court of competent
jurisdiction nor, by virtue of anything contained herein, shall the taking of
<PAGE>
proceedings in one or more jurisdictions preclude the taking of proceedings in
any other jurisdiction whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest,
if any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount)
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
<PAGE>
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.5) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 45 days prior to
the date fixed for redemption (unless a shorter notice period shall be
satisfactory to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided by this Article Twelve, the Securities
or portions of Securities specified in such notice shall become due and payable
on the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount) on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier
date shall be specified in a Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the form and terms of the Securities of such series were
established) except as provided in Sections 6.5 and 10.4, to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest, if any, to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment
specified in said notice, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest, if any, accrued thereon to the date fixed for
redemption; provided that payment of interest, if any, becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
<PAGE>
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer, or (b) a Person specifically identified in such written
statement as an Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so, credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured or otherwise ceased to exist) and are continuing, and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of
<PAGE>
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such 60th day, to
deliver such Officers' Certificate and Securities (subject to the parenthetical
clause in the second preceding sentence) specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof, and (ii) that the Issuer will
make no optional sinking fund payment with respect to such series as provided
in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given
in substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section 12.5. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest, if any, on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
<PAGE>
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
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness but the Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Issuer. The Securities shall rank senior to all existing and future
Indebtedness of the Issuer that is neither Senior Indebtedness nor Senior
Subordinated Indebtedness and only Indebtedness of the Issuer that is Senior
Indebtedness shall rank senior to the Securities in accordance with the
provisions set forth herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the
payment of any principal of, premium, if any, or interest, if any, on any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, or (ii) any other default shall occur with respect to Senior
Indebtedness and the maturity of such Senior Indebtedness has been accelerated
in accordance with its terms, then, upon written notice of such default to the
Issuer and the Trustee by the holders of Senior Indebtedness or any trustee
therefor, unless and until, in either case, the default has been cured or
waived, or has ceased to exist, or any such acceleration has been rescinded or
such Senior Indebtedness has been paid in full, no direct or indirect payment
(in cash, property, securities, by set-off or otherwise) shall be made or
agreed to be made on account of the principal of, premium, if any, or interest,
if any, on any of the Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Securities other than those made in
capital stock of the Issuer (or cash in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of
this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which
the maturity thereof may be accelerated immediately without further notice
<PAGE>
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods occurs (a "Senior Nonmonetary
Default"), then, upon the receipt by the Issuer and the Trustee of written
notice thereof (a "Payment Notice") from or on behalf of holders of such Senior
Indebtedness specifying an election to prohibit such payment and other action
by the Issuer in accordance with the following provisions of this paragraph
(c), the Issuer may not make any payment or take any other action that would be
prohibited by paragraph (b) of this Section 13.1 during the period (the
"Payment Blockage Period") commencing on the date of receipt of such Payment
Notice and ending on the earlier of (i) the date, if any, on which the holders
of such Senior Indebtedness or their representative notify the Trustee that
such Senior Nonmonetary Default is cured or waived or ceases to exist or the
Senior Indebtedness to which such Senior Nonmonetary Default relates is
discharged or (ii) the 179th day after the date of receipt of such Payment
Notice. Notwithstanding the provisions described in the immediately preceding
sentence, the Issuer may resume payments on the Securities following such
Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver,
conservator, liquidator or trustee of the Issuer or of any of its property is
appointed by the order or decree of any court or agency or supervisory
authority having jurisdiction, and such decree or order remains in effect for
more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C)
any of its property is sequestered by court order and such order remains in
effect for more than 60 days or (D) a petition is filed against the Issuer
under any state or federal bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or receivership law of any
jurisdiction whether now or hereafter in effect (including without limitation
the Bankruptcy Code), and is not dismissed within 60 days after such filing; or
(ii) the Issuer (A) commences a voluntary case or other proceeding seeking
liquidation, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, liquidation or other relief with respect to itself or its debt or
other liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
(C) fails generally to, or cannot, pay its debts generally as they become due
or (D) takes any corporate action to authorize or effect any of the foregoing;
or (iii) any Subsidiary of the Issuer takes, suffers or permits to exist any of
the events or conditions referred to in the foregoing clause (i) or (ii), then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or adjustment) which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
<PAGE>
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
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.
<PAGE>
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking
on a parity with the Securities or ranking junior to the Securities, shall not
be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Securities or ranking junior to the
Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the bankruptcy trustee, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Thirteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be entitled to
rely upon written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee or representative on behalf of such holder)
as evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). If the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distributions
pursuant to this Article Thirteen, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution, and to other
facts pertinent to the rights of such Person under this Article Thirteen, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained in
this Article Thirteen or elsewhere in this Indenture, or in any of the
Securities, shall prevent (a) the Issuer at any time, except during the
pendency of any default with respect to Senior Indebtedness described in
Section 13.1(b) or Section 13.1(c) or of any of the events described in Section
13.1(d), from making payments of the principal of or interest, if any, on the
Securities, or (b) the application by the Trustee or any paying agent of any
moneys deposited with it hereunder to payments of the principal of or interest,
if any, on the Securities, if, at the time of such deposit, the Trustee or such
paying agent, as the case may be, did not have the written notice provided for
in Section 13.5 of any event prohibiting the making of such deposit, or if, at
the time of such deposit (whether or not in trust) by the Issuer with the
Trustee or paying agent (other than the Issuer) such payment would not have
been prohibited by the provisions of this Article Thirteen, and the Trustee or
any paying agent shall not be affected by any notice to the contrary received
by it on or after such date.
<PAGE>
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Issuer to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
this Section 13.4 shall have been waived by the Issuer in the instrument or
instruments by which the Issuer incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
13.1 hereof if (i) the Issuer shall be disputing its obligation to make such
payment or perform such obligation, and (ii) either (A) no final judgment
relating to such dispute shall have been issued against the Issuer which is in
full force and effect and is not subject to further review, including a
judgment that has become final by reason of the expiration of the time within
which a party may seek further appeal or review, or (B) if a judgment that is
subject to further review or appeal has been issued, the Issuer shall in good
faith be prosecuting an appeal or other proceeding for review, and a stay of
execution shall have been obtained pending such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Thirteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses
(b) and (c) of Section 13.1 has happened unless and until the Trustee shall
have received an Officers' Certificate to the effect or notice in writing to
that effect signed by or on behalf of the holder or holders, or the
representatives, of Senior Indebtedness who shall have been certified by the
Issuer or otherwise established to the reasonable satisfaction of the Trustee
to be such holder or holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be outstanding;
provided, however, that, if the Trustee shall not have received the Officers'
Certificate or notice provided for in this Section 13.5 at least three Business
Days preceding the date upon which by the terms hereof any moneys become
payable for any purpose (including, without limitation, the payment of either
the principal of or interest, if any, on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such moneys and apply the same to the purpose for
which they were received and shall not be affected by any notice to the
contrary that may be received by it within three Business Days preceding such
date. The Issuer shall give prompt written notice to the Trustee and to each
paying agent of any facts that would prohibit any payment of moneys to or by
the Trustee or any paying agent, and the Trustee shall not be charged with
knowledge of the curing of any default or the elimination of any other fact or
condition preventing such payment or distribution unless and until the Trustee
shall have received an Officers' Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
<PAGE>
Nothing in this Article Thirteen shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the Issuer
and be then acting hereunder, the term "Trustee" as used in this Article
Thirteen shall in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning as
fully for all intents and purposes as if the paying agent were named in this
Article Thirteen in addition to or in place of the Trustee; provided, however,
that Sections 13.5 and 13.7 shall not apply to the Issuer if it acts as paying
agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of
the Issuer or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness, may at any time or from time to time and in
their absolute direction, change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by which it may be secured, or release any
security therefor, or exercise or refrain from exercising any other of their
rights under such Senior Indebtedness, including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
of the Securities or the Trustee and without affecting the obligations of the
Issuer, the Trustee or the Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute money or assets to
Securityholders or the Issuer. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article Thirteen
and no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the date first written above.
TRITON ENERGY LIMITED
By:___________________________
Title:_____________________
Attest:
By:______________________________
Title:___________________________
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:___________________________
Title:_____________________
Attest:
By:______________________________
Title:________________________
<PAGE>
- ----------------------------------------------------------------------------
TRITON ENERGY LIMITED
AND
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
Form of Senior 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 LIMITED and UNITED STATES TRUST
COMPANY OF NEW YORK, Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and
(d)
310(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . 6.13
311(b) . . . . . . . . . . . . . . . . . . . . . 6.13
311(c) . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and
(ii)
312(c) . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii),
(iv), (v), (vi) and (vii)
313(a)(5) . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . . . . . 5.9
316(a)(1) . . . . . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . 5.4
317(a) . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . . . . . 11.7
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . 2
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 2
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . . 3
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . 4
original issue date . . . . . . . . . . . . . . . . . . . . . . . 4
original issue discount . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 5
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
principal amount . . . . . . . . . . . . . . . . . . . . . . . . . 5
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 5
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . 5
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 5
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . . 6
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . 6
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 6
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . 6
<PAGE>
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . 7
SECTION 2.3 Amount Unlimited Issuable in Series . . . . . . . . . . . . . 7
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . . . 9
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . 11
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest . . 12
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . 12
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . 14
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . . . . . . 15
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . 16
SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . . . . . . 16
SECTION 3.3 No Interest Extension . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office . . . . . . 16
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . . . . . . . . 16
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders . . . . . . . . . . . . . . . . 17
SECTION 4.2 Preservation and Disclosure of Securityholders Lists . . . . . 17
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . 19
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.2 Payment of Securities on Default; Suit Therefor . . . . . . . 21
SECTION 5.3 Application of Moneys Collected by Trustee . . . . . . . . . . 22
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . 23
SECTION 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . 23
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority
of Securityholders . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . 24
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . . . . . . 24
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . 25
<PAGE>
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof . . . . . . . 26
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. . . 26
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . 27
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . 27
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series . . . . . . . . . . . . . . . 27
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee . . 28
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . 29
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.13 Preferential Collection of Claims Against the Issuer . . . . 30
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . 30
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . 31
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . 31
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . 32
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . 32
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . . . . . . . 32
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders . . 33
SECTION 8.2 Supplemental Indentures with Consent of Securityholders . . . 34
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . 35
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . 35
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms . . . . . . . . 36
SECTION 9.2 Successor Corporation to be Substituted . . . . . . . . . . . 36
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . . . . . . . . 37
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . 37
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . 39
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . . . . . . . 39
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . . . . . . 39
<PAGE>
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability . . . . 39
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities . . . . . . . . . . . . . . . . . 39
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . . . . 40
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . . . . . . 40
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . 41
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 41
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.9 Submission to Jurisdiction . . . . . . . . . . . . . . . . . 41
SECTION 11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 11.11 Effect of Headings . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . 42
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . 42
SECTION 12.3 Payment of Securities Called for Redemption . . . . . . . . . 43
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption . . . . . . . . . . . . . . . . . . 43
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . 43
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness . . . . . . . 45
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness . . . . . . 47
SECTION 13.3 Payment Permitted If No Default . . . . . . . . . . . . . . . 48
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness . . . . 48
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition . . . . . . 48
SECTION 13.6 Trustee to Effectuate Subordination . . . . . . . . . . . . . 49
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness . . . . . 49
SECTION 13.8 Article Applicable to Paying Agents . . . . . . . . . . . . . 49
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of
the Issuer or Holders of Senior Indebtedness . . . . . . . . 49
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness . . 49
<PAGE>
____________________
[FN]
<F1> This Cross Reference Sheet is not part of the Indenture.
Exhibit 4.7
FORM OF SUBORDINATED INDENTURE
FORM OF SUBORDINATED INDENTURE, dated as of __________ __, 199_
between TRITON ENERGY LIMITED, a Cayman Islands company (the "Issuer"), and THE
CHASE MANHATTAN BANK, a New York banking corporation, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the 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; and
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 on the date of this
Indenture.
<PAGE>
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and "date
of execution and delivery of this Indenture" and other expressions of similar
import refer to the effective date of the original execution and delivery of
this Indenture, viz. as of ____________ __, _________.
The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular.
"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.
<PAGE>
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and, if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Global
Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance
with Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person, means, without
duplication:
(a) (i) the principal of and premium, if any, and interest, if any,
on indebtedness for money borrowed of such Person, indebtedness of
such Person evidenced by bonds, notes, debentures or similar
obligations, and any guaranty by such Person of any indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures
or similar obligations of any other Person, whether any such
indebtedness or guaranty is outstanding on the date of this Indenture
or is thereafter created, assumed or incurred, (ii) obligations of
such Person for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit transaction; (iii) the
principal of and premium, if any, and interest, if any, on
indebtedness incurred, assumed or guaranteed by such Person in
connection with the acquisition by it or any of its subsidiaries of
any other businesses, properties or other assets; (iv) lease
obligations which such Person capitalized in accordance with
Statement of Financial Accounting Standards No. 13 promulgated by the
Financial Accounting Standards Board or such other generally accepted
accounting principles as may be from time to time in effect; (v) any
indebtedness of such Person representing the balance deferred and
unpaid of the purchase price of any property or interest therein
(except any such balance that constitutes an accrued expense or trade
<PAGE>
payable) and any guaranty, endorsement or other contingent obligation
of such Person in respect of any indebtedness of another that is
outstanding on the date of this Indenture or is thereafter created,
assumed or incurred by such Person; and (vi) obligations of such
Person under interest rate, commodity or currency swaps, caps,
collars, options and similar arrangements if and to the extent that
any of the foregoing indebtedness in (i) through (vi) would appear as
a liability on the balance sheet of such Person in accordance with
generally accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clause (a) above.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether
at stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means Triton Energy Limited, a Cayman Islands company, and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer, and delivered to the
Trustee.
"Officers' Certificate", when used with respect to the Issuer, means
a certificate signed by the chairman of the Board of Directors, the president,
or any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer
of the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required by the provisions of such Section
11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
<PAGE>
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount
shall have been deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent), provided that, if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that would be due and payable as of the date of such
determination (as certified by the Issuer to the Trustee) upon a declaration of
acceleration of the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
<PAGE>
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other
than an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was
an Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Issuer (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that the Issuer may not designate any such Subsidiary to be
a Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding
Indebtedness of such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at
any time (other than the Indebtedness evidenced by the Securities of any
series) except (a) any Indebtedness as to which, by the terms of the instrument
creating or evidencing such Indebtedness, it is provided that such Indebtedness
is not senior or prior in right of payment to the Securities or is pari passu
or subordinate by its terms in right of payment to the Securities, (b)
renewals, extensions and modifications of any such Indebtedness, (c) any
Indebtedness of the Issuer to a wholly-owned Subsidiary of the Issuer, (d)
interest accruing after the filing of a petition initiating any proceeding
referred to in Sections 5.1(e) and 5.1(f) unless such interest is an allowed
claim enforceable against the Issuer in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
<PAGE>
"Subsidiary" of any specified Person means any corporation of which
such Person, or such Person and one or more Subsidiaries of such Person, or any
one or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer
acquired or organized after the date hereof, provided, however, that such
Subsidiary of the Issuer shall not be a successor, directly or indirectly, to
any Restricted Subsidiary, and (b) any Subsidiary of the Issuer substantially
all the assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the Issuer 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
<PAGE>
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be
substantially as follows:
This is one of the Securities of the series designated herein
referred to in the within mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities
of each such series shall rank equally and pari passu with the Securities of
each other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in
Article Thirteen, to all Senior Indebtedness of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and, to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officers' Certificate detailing such establishment) or established in one or
<PAGE>
more indentures supplemental hereto, prior to the initial issuance of
Securities of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, on which any such interest shall be payable and on which a
record shall be taken for the determination of Holders to whom any such
interest is payable or the method by which such rate or rates or date or
dates shall be determined or both;
(5) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the series
shall be payable (if other than as provided in Section 3.2) and the office
or agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices (or the method by
which such price or prices shall be determined or both) at which, the form
or method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series may be so redeemed,
purchased or repaid, in whole or in part pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor if
other than in cash and any terms and conditions upon which and the manner
in which (if different from the provisions of Article Twelve) Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
<PAGE>
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(13) any deleted, modified or additional events of default or
remedies or any deleted, modified or additional covenants with respect to
the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be applicable to
Securities of such series;
(15) any provision relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrete, if any, and the date or dates from or to which or
period or periods during which such original issue discount shall accrete
at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities
of such series shall be payable;
(17) if other than The Chase Manhattan Bank is to act as Trustee
for the Securities of such series, the name and Corporate Trust Office of
such Trustee;
(18) if the amounts of payments of principal of, premium, if any,
and interest, if any, on the Securities of such series are to be
determined with reference to an index, the manner in which such amounts
shall be determined;
(19) the terms for conversion or exchange, if any, with respect to
the Securities of such series; and
(20) any other terms of the series.
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
<PAGE>
herein by reference with respect to Securities of such series and shall
thereafter be deemed to be a part of the Indenture for all purposes relating to
Securities of such series as fully as if such Board Resolution or Officers'
Certificate were set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate, if any, and any other terms of the Securities of such series shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures and agreed to by the Trustee, such Issuer Order may
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating the Securities of such series and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (2), (3) and (4) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a
series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates, if any, and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures, (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued, any
separate request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a certification by
the Issuer that it is in compliance with all conditions precedent provided
for in this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
<PAGE>
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely
on an Opinion of Counsel, substantially to the effect that:
(a) 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 the Securities of such series have been authenticated
by the Trustee in accordance with the provisions of this Indenture
and delivered to and duly paid for by the purchasers thereof, they
will have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, 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 of the Issuer,
and no consent, approval or authorization of any governmental body or
agency is required for the performance by the Issuer of its
obligations under the Securities, except such as are specified and
have been obtained and such as may be required by the securities or
blue sky laws of the various states in connection with the offer and
sale of the Securities.
In addition, if the authentication and delivery relates to a new
series of Securities created by an indenture supplemental hereto, such Opinion
of Counsel shall also state that 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
<PAGE>
indenture has been executed and delivered and constitutes the legal, valid and
binding obligation of the Issuer enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of Texas
and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes that both such counsel and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems
proper, upon certificates of officers of the Issuer and its Subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section 2.4 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by the Issuer, or if the Trustee in good faith by its board of directors or
board of trustees, executive committee or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Trustee to personal liability to existing Holders or would adversely affect
the Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer, under its
corporate seal which may, but need not, be attested by its secretary or one of
its assistant secretaries. Such signatures may be the manual or facsimile
<PAGE>
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of a seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect to
the Securities of any series, if not so established, in denominations of $1,000
and any integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Securities not less than 15 days preceding such
<PAGE>
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Securities of each series and the registration of transfer
of Securities of such series. Each such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection and available for copying by the
Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
<PAGE>
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event, the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities, in exchange for such Global Security
or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
<PAGE>
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of
the Issuer. The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any registration of transfer or exchange
of Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of the Issuer, the Trustee
shall authenticate and deliver a new Security of the same series, maturity
date, interest rate, if any, and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as may be required by the Trustee or the Issuer or any such agent to indemnify
and defend and to save each of the Trustee and the Issuer and any such agent
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement, shall surrender
the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee or its agent) connected therewith. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone and shall be entitled to all the benefits of
<PAGE>
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be cancelled by
it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall
dispose of all cancelled Securities in accordance with its standard procedures
and shall deliver a certificate of such disposition to the 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
<PAGE>
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest, if any, on each of the Securities
at the place, at the respective times and in the manner provided in the
Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any
of the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, and an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. In case the Issuer shall at any
time fail to maintain any such office or agency, or shall fail to give notice
to the Trustee of any change in the location thereof, presentation may be made
and notice and demand may be served in respect of the Securities or of this
Indenture at the Corporate Trust Office. The Issuer hereby initially
designates the Corporate Trust Office for each such purpose and appoints the
Trustee as registrar and paying agent and as the agent upon whom notices and
demands may be served with respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuer will not
directly or indirectly extend or consent to the extension of the time for the
payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all Securities
of any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for
the payment of the principal of or interest, if any, on the Securities
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities) in trust for the benefit of the Holders of the
Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any payment of
<PAGE>
the principal of, premium, if any, or interest, if any, on the Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuer (or by any other
obligor under the Securities) to make any payment of the principal of, premium,
if any, or interest, if any, on the Securities when the same shall become due
and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding,
the Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding,
any agreement of the Trustee or any paying agent to hold sums in trust as
provided in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a paying agent a sum sufficient to pay the
principal, premium, if any, or interest, if any, so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, if any, or interest, if any, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or failure
so to act.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
<PAGE>
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, and (ii) received by it in the capacity of
registrar or paying agent for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section 4.2, and as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
<PAGE>
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section 4.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under such subsection
(b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe), if any, which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Issuer is not required to file information, documents or reports
pursuant to either of such Sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a debt security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his knowledge of the Issuer's compliance
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act of 1939 with respect to any 12
month period, such report shall cover the 12 month period ending July 15 and
shall be transmitted by the next succeeding September 15.
<PAGE>
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to promptly
notify the Trustee with respect to any series when and as the Securities of
such series become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Thirteen or otherwise), unless
it is either inapplicable to a particular series or it is specifically deleted
or modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any,
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as and
when such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture continued for a period of 90
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given by certified or registered mail to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities of such series then
Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction
shall enter an order for relief with respect to the Issuer under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or without
the consent of the Issuer a court having jurisdiction shall enter a judgment,
order or decree adjudging the Issuer a bankrupt or insolvent, or enter an order
for relief for reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under any applicable bankruptcy, insolvency or other
similar law of the Cayman Islands, and the continuance of any such judgment,
order or decree is unstayed and in effect for a period of 90 consecutive days;
or
(f) the Issuer shall institute proceedings for entry of an order for
relief with respect to the Issuer under any applicable bankruptcy, insolvency
or other similar law of the Cayman Islands or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
<PAGE>
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or shall
consent to the filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of substantially all of its property, or the Issuer shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the Cayman Islands;
or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration
of any applicable grace periods and the presentation of any debt instruments,
if required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $20,000,000, without each such default and acceleration having
been rescinded or annulled within a period of 20 days after there shall have
been given by certified or registered mail to the Issuer by the Trustee, or to
the Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities of such series then Outstanding, a written
notice specifying each such default and requiring the Issuer to cause each such
default and acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities
of such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision,
however, is subject to the condition that, if at any time after the unpaid
principal amount (or such specified amount) of the Securities of such series
shall have been so declared due and payable and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, upon all of
the Securities of such series and the principal of any and all Securities of
such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, if any, to the extent that
payment of such interest is enforceable under applicable law and on such
principal at the rate borne by the Securities of such series to the date of
<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 Section 5.7 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
<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 Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand;
<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 Section 5.9 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 Chase Manhattan
Bank, the Issuer and such Trustee shall, prior to the issuance of such
Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of
such series and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of 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 or by any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
<PAGE>
made, shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security provided that such revocation shall not become
effective until three Business Days after such filing. Except as aforesaid,
any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution therefor or
on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may,
but shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of
the Indenture or (iii) waive compliance with any term, condition or provision
of any covenant hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and any such Persons, shall be
entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further effect.
<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;
<PAGE>
(g) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act of 1939, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions
as may be expressly permitted by the Trust Indenture Act of 1939, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act of 1939 as in effect at the date as of which this instrument was executed
or any corresponding provision provided for in any similar federal statute
hereafter enacted; and
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Chase Manhattan Bank as Trustee for a
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the
provisions hereof as may be necessary or desirable to provide for the
denomination of Securities in foreign currencies which shall not adversely
affect the interests of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer
solely in respect of, or add new covenants or Events of Default of the Issuer
that apply solely to, Securities not Outstanding on the date of such
supplemental indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities then Outstanding, notwithstanding any of the provisions of Section
8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of
<PAGE>
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental indenture
shall (a) extend the stated final maturity of the principal of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accretion of original issue discount
thereon), or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Issuer thereof (or the time at which
any such redemption, repayment or purchase may be made), or make the principal
thereof (including any amount in respect of original issue discount), or
interest, if any, thereon payable in any coin or currency other than that
provided in the Securities or in accordance with the terms of the Securities,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof or
the amount thereof provable in bankruptcy in each case pursuant to Article
Five, or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of
repayment or purchase at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and
the Issuer to execute supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as
aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may at
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 8.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
<PAGE>
affected thereby, as provided in Section 11.4. Any failure of the Issuer to
give such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and shall be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with
the applicable provisions of this Indenture and that all conditions precedent
to the execution and delivery of such supplemental indenture have been
satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Issuer, 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
<PAGE>
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia
or the Cayman Islands or any political subdivision thereof; and (c) the due and
punctual payment of the principal of and interest, if any, on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee, by
the Person (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the Person which shall have
acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, by supplemental indenture executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest, if any, on all of
the Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a sale,
lease, exchange or other disposition of the property and assets of the Issuer
(including any such intervening successor), the Issuer (including any such
intervening successor) shall continue to be liable on its obligations under
this Indenture and the Securities to the extent, but only to the extent, of
liability to pay the principal of 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,
<PAGE>
sale, lease, exchange or other disposition and any such assumption complies
with the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at
any time (i) the Issuer 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
<PAGE>
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (1) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that such
principal of, premium, if any, or interest, if any, is due and payable, and (2)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (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
<PAGE>
(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
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
<PAGE>
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent and
the Holder of the Securities of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, or any partner of the
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Senior
Indebtedness and the Holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid, first-
class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to
Triton Energy Limited, Caledonian House, Mary Street, P.O. Box 1043, George
Town, Grand Cayman, Cayman Islands. 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
<PAGE>
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with
the Issuer) to The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New
York, New York 10001, Attention: Corporate Trust Department.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, or as required pursuant to the Trust Indenture Act of 1939, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture (other
than a certificate provided pursuant to Section 4.3(d)) and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
opinion as to whether or not such covenant or condition has been complied with,
and (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, on information with respect to which
is in the possession of the Issuer, upon the certificate, statement or opinion
<PAGE>
of or representations by an officer or officers of the Issuer, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of principal of or interest, if any, on the Securities of
any series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any,
premium, if any, or principal need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, purchase or repayment,
and, in the case of payment, no interest shall accrue for the period after such
date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Submission to Jurisdiction. The Issuer hereby
irrevocably submits to the jurisdiction of the courts of the State of New York
and of the courts of the United States of America having jurisdiction in the
State of New York for the purpose of any legal action or proceeding in any such
court with respect to, or arising out of, this Indenture or the Securities.
The Issuer designates and appoints Triton Energy Corporation, 6688 North
Central Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: Robert B.
Holland, III and its successors as the Issuer's lawful agent in the United
States of America upon which may be served, and which may accept and
acknowledge, for and on behalf of the Issuer all process in any action, suit or
proceedings that may be brought against the Issuer in any of the courts
referred to in this Section, and agrees that such service of process, or the
acceptance or acknowledgement thereof by said agent, shall be valid, effective
and binding in every respect; provided, however, that if said agency shall
cease for any reason whatsoever, the Issuer hereby designates and appoints,
<PAGE>
without power of revocation, the Secretary of State of the State of New York to
serve as its agent for service of process. Nothing contained in this Section
11.9 shall limit the right of the Holders of the Securities or any of them to
take proceedings against the Issuer in any other court of competent
jurisdiction nor, by virtue of anything contained herein, shall the taking of
proceedings in one or more jurisdictions preclude the taking of proceedings in
any other jurisdiction whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified, as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest,
if any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount)
thereon or on the portions thereof to be redeemed will cease to accrue. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
<PAGE>
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section 12.2, the Issuer will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting as
its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.5) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 45 days prior to
the date fixed for redemption (unless a shorter notice period shall be
satisfactory to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided by this Article Twelve, the Securities
or portions of Securities specified in such notice shall become due and payable
on the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount) on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier
date shall be specified in a Board Resolution, Officers' Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the form and terms of the Securities of such series were
established) except as provided in Sections 6.5 and 10.4, to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest, if any, to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment
specified in said notice, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest, if any, accrued thereon to the date fixed for
redemption; provided that payment of interest, if any, becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of Securities
<PAGE>
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer, or (b) a Person specifically identified in such written
statement as an Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so, credited) made pursuant to this Section 12.5,
or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured or otherwise ceased to exist) and are continuing, and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
<PAGE>
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such 60th day, to
deliver such Officers' Certificate and Securities (subject to the parenthetical
clause in the second preceding sentence) specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date,
the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof, and (ii) that the Issuer will
make no optional sinking fund payment with respect to such series as provided
in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000, or a lesser sum if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the
expense of the Issuer (if the Issuer shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given
in substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section 12.5. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest, if any, on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
<PAGE>
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
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the
payment of any principal of, premium, if any, or interest, if any, on any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, or (ii) any other default shall occur with respect to Senior
Indebtedness and the maturity of such Senior Indebtedness has been accelerated
in accordance with its terms, then, upon written notice of such default to the
Issuer and the Trustee by the holders of Senior Indebtedness or any trustee
therefor, unless and until, in either case, the default has been cured or
waived, or has ceased to exist, or any such acceleration has been rescinded or
such Senior Indebtedness has been paid in full, no direct or indirect payment
(in cash, property, securities, by set-off or otherwise) shall be made or
agreed to be made on account of the principal of, premium, if any, or interest,
if any, on any of the Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Securities other than those made in
capital stock of the Issuer (or cash in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b)
of this Section 13.1) shall occur under the Senior Indebtedness, pursuant to
which the maturity thereof may be accelerated immediately without further
notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace periods occurs (a "Senior Nonmonetary
Default"), then, upon the receipt by the Issuer and the Trustee of written
<PAGE>
notice thereof (a "Payment Notice") from or on behalf of holders of such Senior
Indebtedness specifying an election to prohibit such payment and other action
by the Issuer in accordance with the following provisions of this paragraph
(c), the Issuer may not make any payment or take any other action that would be
prohibited by paragraph (b) of this Section 13.1 during the period (the
"Payment Blockage Period") commencing on the date of receipt of such Payment
Notice and ending on the earlier of (i) the date, if any, on which the holders
of such Senior Indebtedness or their representative notify the Trustee that
such Senior Nonmonetary Default is cured or waived or ceases to exist or the
Senior Indebtedness to which such Senior Nonmonetary Default relates is
discharged or (ii) the 179th day after the date of receipt of such Payment
Notice. Notwithstanding the provisions described in the immediately preceding
sentence, the Issuer may resume payments on the Securities following such
Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver,
conservator, liquidator or trustee of the Issuer or of any of its property is
appointed by the order or decree of any court or agency or supervisory
authority having jurisdiction, and such decree or order remains in effect for
more than 60 days or (B) the Issuer is adjudicated bankrupt or insolvent or (C)
any of its property is sequestered by court order and such order remains in
effect for more than 60 days or (D) a petition is filed against the Issuer
under any state or federal bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or receivership law of any
jurisdiction whether now or hereafter in effect (including without limitation
the Bankruptcy Code), and is not dismissed within 60 days after such filing; or
(ii) the Issuer (A) commences a voluntary case or other proceeding seeking
liquidation, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, liquidation or other relief with respect to itself or its debt or
other liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
(C) fails generally to, or cannot, pay its debts generally as they become due
or (D) takes any corporate action to authorize or effect any of the foregoing;
or (iii) any Subsidiary of the Issuer takes, suffers or permits to exist any of
the events or conditions referred to in the foregoing clause (i) or (ii), then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or adjustment) which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall have been paid in full.
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
<PAGE>
with the holders of any obligations of the Issuer ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Issuer the amounts at the time due and owing on account of unpaid principal of
and interest, if any, on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution
of any character, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by
the Trustee or any Holder in contravention of any of the terms hereof, such
payment or distribution of securities shall be received in trust for the
benefit of and shall be paid over or delivered and transferred to the holders
of the Senior Indebtedness then outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
such Senior Indebtedness is hereby irrevocably authorized to endorse or assign
the same.
(f) No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Issuer or any
Holder of Securities. Nothing contained herein shall impair, as between the
Issuer and the Holders of Securities of each series, the obligation of the
Issuer to pay to such Holders the principal of and interest, if any, on such
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to remove cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding.
Upon the payment in full of all Senior Indebtedness, the Holders of Securities
of each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior
Indebtedness, and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
<PAGE>
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking
on a parity with the Securities, shall not be deemed to prevent such
obligations from constituting, respectively, obligations ranking on a parity
with the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the bankruptcy trustee, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Thirteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be entitled to
rely upon written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee or representative on behalf of such holder)
as evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). If the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distributions
pursuant to this Article Thirteen, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution, and to other
facts pertinent to the rights of such Person under this Article Thirteen, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained in
this Article Thirteen or elsewhere in this Indenture, or in any of the
Securities, shall prevent (a) the Issuer at any time, except during the
pendency of any default with respect to Senior Indebtedness described in
Section 13.1(b) or Section 13.1(c) or of any of the events described in Section
13.1(d), from making payments of the principal of or interest, if any, on the
Securities, or (b) the application by the Trustee or any paying agent of any
moneys deposited with it hereunder to payments of the principal of or interest,
if any, on the Securities, if, at the time of such deposit, the Trustee or such
paying agent, as the case may be, did not have the written notice provided for
in Section 13.5 of any event prohibiting the making of such deposit, or if, at
the time of such deposit (whether or not in trust) by the Issuer with the
Trustee or paying agent (other than the Issuer) such payment would not have
been prohibited by the provisions of this Article Thirteen, and the Trustee or
any paying agent shall not be affected by any notice to the contrary received
by it on or after such date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Issuer to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
<PAGE>
this Section 13.4 shall have been waived by the Issuer in the instrument or
instruments by which the Issuer incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
13.1 hereof if (i) the Issuer shall be disputing its obligation to make such
payment or perform such obligation, and (ii) either (A) no final judgment
relating to such dispute shall have been issued against the Issuer which is in
full force and effect and is not subject to further review, including a
judgment that has become final by reason of the expiration of the time within
which a party may seek further appeal or review, or (B) if a judgment that is
subject to further review or appeal has been issued, the Issuer shall in good
faith be prosecuting an appeal or other proceeding for review, and a stay of
execution shall have been obtained pending such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Thirteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses
(b) and (c) of Section 13.1 has happened unless and until the Trustee shall
have received an Officers' Certificate to the effect or notice in writing to
that effect signed by or on behalf of the holder or holders, or the
representatives, of Senior Indebtedness who shall have been certified by the
Issuer or otherwise established to the reasonable satisfaction of the Trustee
to be such holder or holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be outstanding;
provided, however, that, if the Trustee shall not have received the Officers'
Certificate or notice provided for in this Section 13.5 at least three Business
Days preceding the date upon which by the terms hereof any moneys become
payable for any purpose (including, without limitation, the payment of either
the principal of or interest, if any, on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such moneys and apply the same to the purpose for
which they were received and shall not be affected by any notice to the
contrary that may be received by it within three Business Days preceding such
date. The Issuer shall give prompt written notice to the Trustee and to each
paying agent of any facts that would prohibit any payment of moneys to or by
the Trustee or any paying agent, and the Trustee shall not be charged with
knowledge of the curing of any default or the elimination of any other fact or
condition preventing such payment or distribution unless and until the Trustee
shall have received an Officers' Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this Article
Thirteen with respect to any Senior Indebtedness which may at the time be held
by it, to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article Thirteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6.
<PAGE>
SECTION 13.8 Article Applicable to Paying Agents. In case at any
time any paying agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this Article
Thirteen shall in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning as
fully for all intents and purposes as if the paying agent were named in this
Article Thirteen in addition to or in place of the Trustee; provided, however,
that Sections 13.5 and 13.7 shall not apply to the Issuer if it acts as paying
agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions
of the Issuer or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness, may at any time or from time to time and in
their absolute direction, change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by which it may be secured, or release any
security therefor, or exercise or refrain from exercising any other of their
rights under such Senior Indebtedness, including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
of the Securities or the Trustee and without affecting the obligations of the
Issuer, the Trustee or the Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute money or assets to
Securityholders or the Issuer. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article Thirteen
and no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, as of the date first written above.
TRITON ENERGY LIMITED
By:______________________________
Title:___________________________
Attest:
By:______________________________
Title:___________________________
THE CHASE MANHATTAN BANK,
as Trustee
By:______________________________
Title:___________________________
Attest:
By:______________________________
Title:___________________________
<PAGE>
___________________________________________________________________________
___________________________________________________________________________
TRITON ENERGY LIMITED
AND
THE CHASE MANHATTAN BANK
as Trustee
Form of Subordinated Indenture
Dated as of ______________ __, ____
___________________________________________________________________________
___________________________________________________________________________
<PAGE>
CROSS REFERENCE SHEET[FN]
_______________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated
as of ________ __, ____ between TRITON ENERGY LIMITED and THE CHASE MANHATTAN
BANK, Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) . . . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b)
and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(b) . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(c) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and
(ii)
312(c) . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii),
(iii), (iv), (v), (vi)
and (vii)
313(a)(5) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . . . . . . . 5.9
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . 5.4
317(a) . . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . 11.7
___________________
<F1>This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . 3
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 . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 5
original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . 5
original issue discount . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . 8
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . 8
<PAGE>
SECTION 2.3 Amount Unlimited Issuable in Series . . . . . . . . . . 9
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . 12
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . 15
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . 15
SECTION 2.7 Denomination and Date of Securities; Payments of Interest 15
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . 16
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 18
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . . . 19
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . 20
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . 20
SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . . . 21
SECTION 3.3 No Interest Extension . . . . . . . . . . . . . . . . . 21
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office . . 21
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . . . . 21
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders . . . . . . . . . . . . 22
SECTION 4.2 Preservation and Disclosure of Securityholders Lists . 22
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . 24
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . 25
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . 25
SECTION 5.2 Payment of Securities on Default; Suit Therefor . . . . 28
SECTION 5.3 Application of Moneys Collected by Trustee . . . . . . 29
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . . 30
SECTION 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . . 31
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . . 31
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders . . . . . . . . . . . . . 31
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . 32
SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . 32
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . . . 32
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . 34
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof . . . . 35
SECTION 6.4 Trustee and Agents May Hold Securities; Collections,
etc. . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . 35
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.. 36
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . . 36
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series . . . . . . . . . . . . 36
<PAGE>
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . . 39
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . 39
SECTION 6.13 Preferential Collection of Claims Against the Issuer . 40
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . 40
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . . 41
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . . 42
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . 42
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . . 43
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . . . 43
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . . . 43
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . . . . . 45
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . . 47
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . . 47
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms . . . . 47
SECTION 9.2 Successor Corporation to be Substituted . . . . . . . . 48
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . . . . 49
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . . . 49
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . 52
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . . . . 52
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . . . 52
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . 52
<PAGE>
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities . . . . . . . . . . 53
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . 53
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders
of Securities . . . . . . . . . . . . . . . . . . . . 53
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . . 54
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . . . 55
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . 55
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.9 Submission to Jurisdiction . . . . . . . . . . . . . . 55
SECTION 11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.11 Effect of Headings . . . . . . . . . . . . . . . . . . 56
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . 56
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . . . 56
SECTION 12.3 Payment of Securities Called for Redemption . . . . . . 57
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption . . . . . . . . . . . . 58
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . . . . 58
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness . . . . 60
SECTION 13.2 Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.3 Payment Permitted If No Default . . . . . . . . . . . . 64
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness . 64
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition . . . 64
SECTION 13.6 Trustee to Effectuate Subordination . . . . . . . . . . 65
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness . . 65
SECTION 13.8 Article Applicable to Paying Agents . . . . . . . . . . 65
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 66
EXHIBIT 4.8
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
<PAGE>
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 [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).
<PAGE>
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 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,]
<PAGE>
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
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
<PAGE>
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,
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
<PAGE>
event shall such [Common][Preferred] Shares be issued, and the Company is
hereby authorized to suspend the exercise of all Warrants, for the period
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
<PAGE>
dissolution, liquidation or winding up and the rights to exercise the Warrants
shall terminate.
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
<PAGE>
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
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
<PAGE>
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-
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
<PAGE>
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
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.
<PAGE>
(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
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
<PAGE>
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
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
<PAGE>
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
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
<PAGE>
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
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.
<PAGE>
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
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.
<PAGE>
(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
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
<PAGE>
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 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
<PAGE>
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.
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 $___,
<PAGE>
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
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
<PAGE>
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
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
<PAGE>
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
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 Securities Prior to _______________ this Warrant
with Warrants which are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants
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,]
<PAGE>
[by bank wire transfer] in immediately available funds, the Warrant Price for
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) (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
___________________________________
<PAGE>
=======================================================================
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 . . . . . . . . . . . 3
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>
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 . . . . . . . . . . . . . . . 15
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 . . . . . . . . . . . . . . . 16
(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.
EXHIBIT 4.10
TRITON ENERGY LIMITED
Form of TEL Debt Warrant Agreement<F1>
THIS WARRANT AGREEMENT dated as of __________, 199_ between Triton
Energy Limited, a Cayman Islands company (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 The Chase Manhattan Bank, as trustee
(the "Senior Trustee")] [FOR SENIOR SUBORDINATED DEBT: ________________,
between the Company and United States Trust Company of New York, as trustee
(the "Senior Subordinated Trustee") [FOR SUBORDINATED DEBT:
__________________, between the Company and The Chase Manhattan Bank, 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
evidencing the balance, if any, of the Warrants remaining after such exercise,
<PAGE>
and (iv) such other information as the Company or such Trustee shall reasonably
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
with any and all other Warrant Certificates duly executed and delivered
<PAGE>
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.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or ________], Warrant Certificates evidencing Warrants may be
<PAGE>
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.
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,
<PAGE>
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
Limited, Caledonian House, Mary Street, P.O. Box 1043, George Town, Grand
Cayman, Cayman Islands (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
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
<PAGE>
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 Limited 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 LIMITED
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 Securities Prior to _______________ this Warrant
with Warrants which are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants
immediately exercisable. evidence by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRITON ENERGY LIMITED
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 Limited (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
<PAGE>
funds, the Warrant Price for 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 ____________________, 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 The Chase Manhattan Bank] [FOR
SENIOR SUBORDINATED DEBT: _________, between the Company and United States
Trust Company of New York] [FOR SUBORDINATED DEBT: _______________, between
the Company and The Chase Manhattan Bank, 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.
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________, 199_.
TRITON ENERGY LIMITED
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 Limited 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 Limited,
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
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)]
<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) (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
______________________________
<PAGE>
=======================================================================
TRITON ENERGY LIMITED
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.
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 February 9, 1996, appearing on page F-2 of Triton Energy Corporation's
Annual Report on Form 10-K for the year ended December 31, 1995. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
- ------------------------
PRICE WATERHOUSE LLP
Dallas, Texas
September 9, 1996
EXHIBIT 23.4
DeGolyer and MacNaughton
One Energy Square
Dallas, Texas 75206
August 16, 1996
Triton Energy Limited
Caledonian House
Mary Street, P.O. Box 1043
George Town
Grand Cayman, Cayman Islands
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 Annual Report on Form 10-K for the year ended December 31, 1995
(the "Form 10-K"), and the inclusion in the Registration Statement of Triton
Energy Limited and Triton Energy Corporation (the "Companies") on Form S-3
relating to an offering of the Companies' securities of certain data from our
report dated February 12, 1996, entitled "Appraisal Report as of December 31,
1995 on Certain Properties in Colombia owned by Triton Colombia Incorporated"
under the caption "Properties-Reserves" in Item 2 of the Form 10-K and (ii) the
specific references to our firm under such caption in the Form 10-K and under
the caption "Experts" in such Registration Statement.
Very truly yours,
/s/ DeGolyer and MacNaughton
DeGOLYER and MacNAUGHTON
Exhibit 24.1
POWER OF ATTORNEY
Each person whose signature appears below authorizes Thomas G. Finck,
Peter Rugg and Robert B. Holland, III, or any of them, to execute in the name
of each such person who is then an officer or director of Triton Energy Limited
or Triton Energy Corporation (each a "Registrant") and to file a Registration
Statement on Form S-3 relating to debt securities of Triton Energy Limited and
Triton Energy Corporation and equity securities of Triton Energy Limited,
including debt securities constituting joint and several debt obligations of
the Registrants and guarantees by a Registrant of the debt securities of the
other Registrant, and Preference Shares, Ordinary Shares, and Warrants to
Purchase preference shares, ordinary shares and debt securities, and any
amendments thereto (and any additional Registration Statement related thereto
permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all
further amendments including post-effective amendments thereto)) in each case
necessary or advisable to enable the Registrant to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in respect thereof, in connection with the
registration of the securities which are the subject of such Registration
Statements, which amendments may make such changes in such Registration
Statements as such attorney may deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Thomas G. Finck President, Chief Executive May 7, 1996
- ----------------------- Officer, Director (Principal
Thomas G. Finck Executive Officer)
/s/Peter Rugg Senior Vice President and May 7, 1996
- ----------------------- Chief Financial Officer
Peter Rugg (Principal Financial and
Accounting Officer)
/s/Ernest E. Cook Director May 7, 1996
- -----------------------
Ernest E. Cook
/s/Sheldon R. Erikson Director May 7, 1996
- -----------------------
Sheldon R. Erikson
/s/Ray H. Eubank Director May 7, 1996
- -----------------------
Ray H. Eubank
<PAGE>
/s/Jesse E. Hendricks Director May 7, 1996
- -----------------------
Jesse E. Hendricks
/s/Fitzgerald S. Hudson Director May 7, 1996
- -----------------------
Fitzgerald S. Hudson
Director May 7, 1996
John R. Huff
/s/John P. Lewis Director May 7, 1996
- -----------------------
John P. Lewis
/s/Michael E. McMahon Director May 7, 1996
- -----------------------
Michael E. McMahon
/s/Wellslake D. Morse, Jr. Director May 7, 1996
- --------------------------
Wellslake D. Morse, Jr.
/s/Edwin D. Williamson Director May 7, 1996
- -----------------------
Edwin D. Williamson
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) _______
THE CHASE MANHATTAN 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)
Delaware 75-1151855
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(Address of principal executive offices) (Zip Code)
TRITON ENERGY LIMITED
(Exact name of obligor [guarantor] as specified in its charter)
Cayman Islands Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
<PAGE>
Caledonian House
Mary Street, P.O. Box 1043
George Town Grand Cayman, Cayman Islands Not Applicable
(Address of principal executive offices) (Zip Code)
Senior 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
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.
Item 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, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-
06249 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.
On July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
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. 333-06249,
which is incorporated by reference).
<PAGE>
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. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
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. (On July 14, 1996, in connection with the merger of Chemical Bank
and The Chase Manhattan Bank (National Association), Chemical Bank, the
surviving corporation, was renamed The Chase Manhattan Bank).
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 4th day of September, 1996.
THE CHASE MANHATTAN BANK
By /s/ GREGORY MCFARLANE
-----------------------
Gregory McFarlane
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 March 31, 1996, 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 . . . . . . . $4,167
Interest-bearing balances . . . . . . . . 5,094
Securities:
Held to maturity securities . . . . . . . . . 3,367
Available for sale securities . . . . . . . . 27,786
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 . . . . . . . . . . . 7,204
Securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . 136
Loans and lease financing receivables:
Loans and leases, net of unearned income . $ 67,215
Less: Allowance for loan and lease losses. 1,768
Less: Allocated transfer risk reserve . . 75
--------
Loans and leases, net of
unearned income, allowance, and reserve . . . . . 65,372
Trading Assets . . . . . . . . . . . . . . . 28,610
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . 1,326
Other real estate owned . . . . . . . . . . . 20
Investments in unconsolidated
subsidiaries and associated companies . . 68
Customer's liability to this bank on
acceptances outstanding . . . . . . . . . . . 995
Intangible assets . . . . . . . . . . . . . . 309
Other assets . . . . . . . . . . . . . . . . 6,993
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . $151,453
--------<PAGE>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . $46,917
Noninterest-bearing . . . . . . . . . . . $16,711
Interest-bearing . . . . . . . . . . . . 30,206
-------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's . . . . . . . . . 31,577
Noninterest-bearing . . . . . . . . . . . $ 2,197
Interest-bearing . . . . . . . . . . . . 29,380
-------
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 IBF's federal funds purchased . . 12,155
Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . 8,536
Demand notes issued to the U.S. Treasury . . 1,000
Trading liabilities . . . . . . . . . . . . . 20,914
Other Borrowed money:
With a remaining maturity of one year or
less . . . . . . . . . . . . . . . . . . 10,018
With a remaining maturity of more than
one year . . . . . . . . . . . . . . . . 192
Mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . 12
Bank's liability on acceptances executed and
outstanding . . . . . . . . . . . . . . . . . 1,001
Subordinated notes and debentures . . . . . . 3,411
Other liabilities . . . . . . . . . . . . . . 8,091
TOTAL LIABILITIES . . . . . . . . . . . . . . 143,824
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . 4,664
Undivided profits and capital reserves . . . 2,970
Net unrealized holding gains (Losses) on
available-for-sale securities . . . . . . (633)
Cumulative foreign currency translation
adjustments . . . . . . . . . . . . . . . . . 8
TOTAL EQUITY CAPITAL . . . . . . . . . . . . 7,629
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . $151,453
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
<PAGE>
We, the undersigned directors, attest to 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 conformation with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
THOMAS G. LABRECQUE )
Exhibit 25.2
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) _______
THE CHASE MANHATTAN 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 LIMITED
(Exact name of obligor as specified in its charter)
Cayman Islands Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Caledonian House
Mary Street, P.O. Box 1043
George Town, Grand Cayman, Cayman Islands Not Applicable
(Address of principal executive offices) (Zip Code)
Senior 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
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.
Item 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, December 2, 1991 and July 10, 1996 (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. 333-06249,
which is incorporated by reference).
<PAGE>
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 9th day of August, 1996.
THE CHASE MANHATTAN BANK
By /s/ GREGORY MCFARLANE
----------------------
Gregory McFarlane
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 March 31, 1996, 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 . . . . . . . $3,391
Interest-bearing balances . . . . . . . . 2,075
Securities:
Held to maturity securities . . . . . . . . . 3,607
Available for sale securities . . . . . . . . 29,029
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 . . . . . . . . . . . 1,264
Securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . 354
Loans and lease financing receivables:
Loans and leases, net of unearned income $ 73,216
Less: Allowance for loan and lease losses 1,854
Less: Allocated transfer risk reserve . . 104
--------
Loans and leases, net of
unearned income,
allowance, and reserve . . . . . 71,258
Trading Assets . . . . . . . . . . . . . . . 25,919
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . 1,337
Other real estate owned . . . . . . . . . . . 30
Investments in unconsolidated
subsidiaries and associated companies . . 187
Customer's liability to this bank on
acceptances outstanding . . . . . . . . . . . 1,082
Intangible assets . . . . . . . . . . . . . . 419
Other assets . . . . . . . . . . . . . . . . 7,406
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . $147,358
--------
<PAGE>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . $45,786
Noninterest-bearing . . . . . . . . . . . $ 4,972
Interest-bearing . . . . . . . . . . . . 30,814
-------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's . . . . . . . . . 36,550
Noninterest-bearing . . . . . . . . . . . $ 202
Interest-bearing . . . . . . . . . . . . 36,348
-------
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 IBF's federal funds purchased . . 11,412
Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . 2,444
Demand notes issued to the U.S. Treasury . . 699
Trading liabilities . . . . . . . . . . . . . 19,998
Other Borrowed money:
With a remaining maturity of one year or
less . . . . . . . . . . . . . . . . . . 11,305
With a remaining maturity of more than
one year . . . . . . . . . . . . . . . . 130
Mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . 13
Bank's liability on acceptances executed and
outstanding . . . . . . . . . . . . . . . . . 1,089
Subordinated notes and debentures . . . . . . 3,411
Other liabilities . . . . . . . . . . . . . . 6,778
TOTAL LIABILITIES . . . . . . . . . . . . . . 139,615
________
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . 4,664
Undivided profits and capital reserves . . . 3,058
Net unrealized holding gains (Losses) on
available-for-sale securities . . . . . . (607)
Cumulative foreign currency translation
adjustments . . . . . . . . . . . . . . . . . 8
TOTAL EQUITY CAPITAL . . . . . . . . . . . . 7,743
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . $147,358
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
<PAGE>
We, the undersigned directors, attest to 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 conformation with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
THOMAS G. LABRECQUE )
Exhibit 25.3
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)______
THE CHASE MANHATTAN 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 LIMITED
(Exact name of obligor as specified in its charter)
Cayman Islands Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Caledonian House
Mary Street, P.O. Box 1043
George Town, Grand Cayman, Cayman Islands Not Applicable
(Address of principal executive offices) (Zip Code)
Subordinated 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
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. Affiliation with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 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, 1997, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (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. 333-06249, 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 9th day of August, 1996.
THE CHASE MANHATTAN BANK
By /s/ Gregory McFarlane
---------------------
Gregory McFarlane
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 March 31, 1996, 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 . . . . . . . $3,391
Interest-bearing balances . . . . . . . . 2,075
Securities:
Held to maturity securities . . . . . . . . . 3,607
Available for sale securities . . . . . . . . 29,029
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 . . . . . . . . . . . 1,264
Securities purchased under agreements to
resell . . . . . . . . . . . . . . . . . 354
Loans and lease financing receivables:
Loans and leases, net of unearned income $73,216
Less: Allowance for loan and lease losses 1,854
Less: Allocated transfer risk reserve . . 104
-------
Loans and leases, net of
unearned income,
allowance, and reserve . . . . . 71,258
Trading Assets . . . . . . . . . . . . . . . 25,919
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . 1,337
Other real estate owned . . . . . . . . . . . 30
Investments in unconsolidated
subsidiaries and associated companies . . 187
Customer's liability to this bank on
acceptances outstanding . . . . . . . . . . . 1,082
Intangible assets . . . . . . . . . . . . . . 419
Other assets . . . . . . . . . . . . . . . . 7,406
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . $147,358
========
<PAGE>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . $45,786
Noninterest-bearing . . . . . . . . . . . $14,972
Interest-bearing . . . . . . . . . . . . 30,814
-------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's . . . . . . . . . 36,550
Noninterest-bearing . . . . . . . . . . . $ 202
Interest-bearing . . . . . . . . . . . . 36,348
-------
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 IBF's federal funds purchased . . 11,412
Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . 2,444
Demand notes issued to the U.S. Treasury . . 699
Trading liabilities . . . . . . . . . . . . . 19,998
Other Borrowed money:
With a remaining maturity of one year or
less . . . . . . . . . . . . . . . . . . 11,305
With a remaining maturity of more than
one year . . . . . . . . . . . . . . . . 130
Mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . 13
Bank's liability on acceptances executed and
outstanding . . . . . . . . . . . . . . . . . 1,089
Subordinated notes and debentures . . . . . . 3,411
Other liabilities . . . . . . . . . . . . . . 6,778
TOTAL LIABILITIES . . . . . . . . . . . . . . 139,615
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . 4,664
Undivided profits and capital reserves . . . 3,058
Net unrealized holding gains (Losses) on
available-for-sale securities . . . . . . (607)
Cumulative foreign currency translation
adjustments . . . . . . . . . . . . . . . . . 8
TOTAL EQUITY CAPITAL . . . . . . . . . . . . 7,743
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
<PAGE>
We, the undersigned directors, attest to 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 conformation with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER ) DIRECTORS
THOMAS G. LABRECQUE )
Exhibit 25.4
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) ______
________________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification Number)
114 West 47th Street 10036-1532
New York, New York (Zip Code)
(Address of principal
executive offices)
______________________
Triton Energy Corporation
(Exact name of obligor as specified in its charter)
Delaware 75-1151855
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
<PAGE>
6688 North Central Expressway
Suite 1400
Dallas, Texas
(Address of principal executive 75206-9926
offices) (Zip Code)
<PAGE>
___________________________
Triton Energy Limited
(Exact name of guarantor as specified in its charter)
Cayman Islands N/A
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Caledonian House
P.O. Box 1043, George Town
Grand Cayman, Cayman Islands
British West Indies
(Address of principal executive N/A.
offices) (Zip code)
______________________________
Senior Subordinated
(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 the Obligor
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.
The Triton Energy Corporation and Triton Energy Limited is currently not
in default under any of its outstanding securities for which United
States Trust Company of New York 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.
<PAGE>
16. List of Exhibits
T-1.1 -- Organization Certificate, as amended, issued by the State of
New York Banking Department to transact business as a Trust
Company, is incorporated by reference to Exhibit T- 1.1 to Form
T-1 filed on September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056),
T-1.2 -- Included in Exhibit T-1.1.
T-1.3 -- Included in Exhibit T-1.1.
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to Form
T-1 filed on September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of September 5, 1996, the trustee had 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, 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.
________________________
<PAGE>
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 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 5th day of September, 1996.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ GERARD F. GANEY
Gerard F. Ganey
Senior Vice President
<PAGE>
U.S.TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
MARCH 31, 1996
($ IN THOUSANDS)
ASSETS
- ------
Cash and Due from Banks $ 47,046
Short-Term Investments 50
Securities, Available For Sale 758,118
Loans 1,221,210
Less: Allowance for Credit Losses 13,113
-----------
Net Loans 1,208,097
Premises and Equipment 58,360
Other Assets 125,979
-----------
Total Assets $ 2,197,650
===========
LIABILITIES
- -----------
Deposits:
Non-Interest Bearing $ 387,509
Interest Bearing 1,446,158
-----------
Total Deposits 1,833,657
Short-Term Credit Facilities 82,285
Accounts Payable and Accrued Liabilities 128,745
-----------
Total Liabilities 2,044,687
-----------
STOCKHOLDER'S EQUITY
- --------------------
Common Stock 14,995
Capital Surplus 42,394
Retained Earnings 96,511
Unrealized Gains on Securities Available
for Sale (Net of Taxes) (937)
-----------
Total Stockholder's Equity 152,963
-----------
Total Liabilities and Stockholder's $ 2,197,650
Equity ===========
<PAGE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory
authority and is true to the best of my knowledge and belief.
/s/ Richard E. Brinkman
Signature of Officer
__________________________________________
Date
Exhibit 25.5
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) _____
----------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification Number)
114 West 47th Street 10036-1532
New York, New York (Zip Code)
(Address of principal
executive offices)
----------------------------------
Triton Energy Limited
(Exact name of obligor as specified in its charter)
Cayman Islands N/A
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Caledonian House N/A
P.O. Box 1043, George Town (Zip code)
Grand Cayman, Cayman Islands
British West Indies
(Address of principal executive offices)
-----------------------------------
Senior Subordinated
(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 the Obligor
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.
The Triton Energy Limited is currently not in default under any of its
outstanding securities for which United States Trust Company of New York
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.
<PAGE>
16. List of Exhibits
T-1.1 -- Organization Certificate, as amended, issued by the State of New
York Banking Department to transact business as a Trust Company,
is incorporated by reference to Exhibit T-1.1 to Form T-1 filed
on September 15, 1995 with the Commission pursuant to the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform
Act of 1990 (Registration No. 33-97056).
T-1.2 -- Included in Exhibit T-1.1.
T-1.3 -- Included in Exhibit T-1.1.
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to Form
T-1 filed on September 15, 1995 with the Commission pursuant to
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee pursuant
to law or the requirements of its supervising or examining
authority.
NOTE
As of August 5, 1996, the trustee had 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, 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.
------------------------
<PAGE>
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 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 5th day of August, 1996.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ Gerard F. Ganey
------------------------------
Gerard F. Ganey
Senior Vice President
<PAGE>
U.S. TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
MARCH 31, 1996
($ IN THOUSANDS)
ASSETS
- -----------
Cash and Due from Banks $ 47,046
Short-Term Investments 50
Securities, Available For Sale 758,118
Loans 1,221,210
Less: Allowance for Credit Losses 13,113
-------------
Net Loans 1,208,097
Premises and Equipment 58,360
Other Assets 125,979
-------------
Total Assets $2,197,650
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 387,509
Interest Bearing 1,446,148
-------------
Total Deposits 1,833,657
Short-Term Credit Facilities 82,285
Accounts Payable and Accrued 128,745
Liabilities -------------
Total Liabilities 2,044,687
-------------
STOCKHOLDER'S EQUITY
- --------------------------------------
Common Stock 14,995
Capital Surplus 42,394
Retained Earnings 96,511
Unrealized Gains on Securities (937)
Available for Sale (Net of Taxes) -------------
Total Stockholder's Equity 152,963
-------------
Total Liabilities and $2,197,650
Stockholder's Equity ==========
<PAGE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory
authority and is true to the best of my knowledge and belief.
__________________________________________
Signature Of Officer
__________________________________________
Date
