Exhibit 10.30
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of November 16, 1995 (this
"Supplemental Indenture"), between TRITON ENERGY CORPORATION, a Delaware
corporation, as issuer (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 and the Trustee are parties to the Indenture
dated as of December 15, 1993 (as supplemented by the First Supplemental
Indenture, dated as of December 15, 1993 (the "First Supplemental Indenture"),
and the Second Supplemental Indenture, dated as of May 12, 1995, and as the
same may be further amended, supplemented or otherwise modified from time to
time, the "Indenture"); and
WHEREAS, pursuant to the First Supplemental Indenture, the Issuer
has provided for the issuance of its 9-3/4% Senior Subordinated Discount Notes
due 2000 in the aggregate principal amount of $170 million (the "Notes"),
which Notes constitute the only series of Securities heretofore issued
pursuant to the Indenture; and
WHEREAS, the Board of Directors of the Issuer has adopted a Board
Resolution authorizing the Issuer to enter into this Supplemental Indenture;
and
WHEREAS, the Issuer has requested the Trustee and the Trustee has
agreed to join in the execution of this Supplemental Indenture in accordance
with the terms of Section 8.2 of the Indenture and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Issuer and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the Holders from time to time
of the Notes as follows:
SECTION 1. Amendment to the Indenture.
Notwithstanding anything contained in Section 8.2 of the Indenture to the
contrary, if, at any time during the term of the Indenture, the Issuer effects
a transaction pursuant to which it becomes a Subsidiary of a holding company
(the "Parent"), organized under the laws of the Cayman Islands for the purpose
of becoming the parent holding company of the Issuer, the Issuer may deliver
to the Trustee an Officers' Certificate stating that such event has occurred,
and upon delivery of such Officers' Certificate, the Issuer, the Parent and
the Trustee shall enter into an amended and restated indenture substantially
in the form attached hereto as Exhibit A (the "Amended and Restated
Indenture") (which Amended and Restated Indenture provides for the guarantee
of the payment of the Notes by the Parent) without the consent of the Holders
of the Notes and without any other action on the part of such Holders and upon
the execution thereof, the Amended and Restated Indenture shall be binding
upon all Holders of the Notes.
In the event that the creation of the holding company structure is
effected through the merger (the "Merger") of a Person that is a Subsidiary of
the Parent with and into the Issuer, with the Issuer being the surviving
corporation (the "Surviving Corporation"), the Surviving Corporation shall not
be required to satisfy the condition contained in Section 9.1(e) of the
Indenture and the Holders hereby waive any such requirement in connection with
the Merger; provided that such waiver does not constitute a waiver of any
other rights of the Holders under the Indenture.
Capitalized terms used herein but not otherwise defined shall have the
meanings given such terms in the Indenture.
SECTION 2. MISCELLANEOUS.
2.1 The Trustee. The recitals contained herein shall be taken
as the statements of the Issuer and the Trustee shall not assume
responsibility for, or be liable in respect of, the correctness thereof. The
Trustee makes no representation as to, and shall not be liable or responsible
for, the validity or sufficiency of this Supplemental Indenture.
2.2 Limited Effect. Except as expressly amended hereby, all of
the provisions, covenants, terms and conditions of the Indenture are ratified
and confirmed, and shall remain in full force.
2.3 Counterparts. This Supplemental Indenture may be executed by
one or more parties hereto on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the
same instrument.
2.4 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED
TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
TRITON ENERGY CORPORATION, as
Issuer
Attest:____________________ By:___________________________
Title: Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
Attest:____________________ By:___________________________
Title: Title:
EXHIBIT A
TRITON ENERGY CORPORATION,
AS ISSUER
TC HOLDINGS LIMITED,
AS GUARANTOR
AND
UNITED STATES TRUST COMPANY OF NEW YORK
AS TRUSTEE
FORM OF AMENDED AND RESTATED SENIOR SUBORDINATED INDENTURE
DATED AS OF DECEMBER 15, 1993
AND AS AMENDED AND RESTATED ON __________, 199_
CROSS REFERENCE SHEET(1)
_______________
Provisions of Trust Indenture Act of 1939 and Amended and Restated
Indenture dated as of December 15, 1993 and amended and restated as of
___________, 199_, among TRITON ENERGY CORPORATION, TC HOLDINGS 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
________________________
(1) This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS . . . . . . . . . . . . . 14
SECTION 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Accreted Amount . . . . . . . . . . . . . . . . . . . . . . . . .
14
Acquired Indebtedness . . . . . . . . . . . . . . . . . . . . . .
15
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale Amount . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale Offer . . . . . . . . . . . . . . . . . . . . . . . . .
15
Asset Sale Offer Date . . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Offer Notice . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Offer Price . . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Purchase Date . . . . . . . . . . . . . . . . . . . . .
16
Asset Sale Purchase Notice . . . . . . . . . . . . . . . . . . . .
16
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . .
16
Average Quoted Price . . . . . . . . . . . . . . . . . . . . . . .
16
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . .
16
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . .
16
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . .
16
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . .
17
Cash Equivalents . . . . . . . . . . . . . . . . . . . . . . . . .
17
Change in Control . . . . . . . . . . . . . . . . . . . . . . . .
17
Change in Control Notice . . . . . . . . . . . . . . . . . . . . .
17
Change in Control Offer . . . . . . . . . . . . . . . . . . . . .
17
Change in Control Purchase Date . . . . . . . . . . . . . . . . .
17
Change in Control Purchase Notice . . . . . . . . . . . . . . . .
18
Change in Control Purchase Price . . . . . . . . . . . . . . . . .
18
Colombian Assets . . . . . . . . . . . . . . . . . . . . . . . . .
18
Colombian Sale Redemption Price . . . . . . . . . . . . . . . . .
18
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
Consolidated Net Income . . . . . . . . . . . . . . . . . . . . .
18
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . .
19
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . .
19
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . .
19
Currency Agreement . . . . . . . . . . . . . . . . . . . . . . . .
19
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
Excess Proceeds . . . . . . . . . . . . . . . . . . . . . . . . .
19
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . .
20
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Global Security . . . . . . . . . . . . . . . . . . . . . . . . .
20
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . .
20
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Interest Rate Agreements . . . . . . . . . . . . . . . . . . . . .
21
Intercompany Agreement . . . . . . . . . . . . . . . . . . . . . .
21
Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Make-Whole Premium . . . . . . . . . . . . . . . . . . . . . . . .
22
Material Subsidiary . . . . . . . . . . . . . . . . . . . . . . .
22
Net Cash Proceeds . . . . . . . . . . . . . . . . . . . . . . . .
22
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
1997 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . .
23
1997 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . .
23
Oil and Gas Reserve Estimate . . . . . . . . . . . . . . . . . . .
23
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . .
23
Original issue date . . . . . . . . . . . . . . . . . . . . . . .
24
Original issue discount . . . . . . . . . . . . . . . . . . . . .
24
Original Issue Discount Security . . . . . . . . . . . . . . . . .
24
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . .
25
Permitted Indebtedness . . . . . . . . . . . . . . . . . . . . . .
25
Permitted Investments . . . . . . . . . . . . . . . . . . . . . .
26
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . .
26
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . .
26
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
Principal amount . . . . . . . . . . . . . . . . . . . . . . . . .
27
Quoted Price . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
Record date . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
"Redeemable Stock . . . . . . . . . . . . . . . . . . . . . . . .
27
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . .
27
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . .
27
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . .
27
Restricted Payment . . . . . . . . . . . . . . . . . . . . . . . .
28
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . .
28
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . .
28
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
Senior Indebtedness of the Guarantor . . . . . . . . . . . . . . .
28
Senior Indebtedness of the Issuer . . . . . . . . . . . . . . . .
29
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . .
29
Special Subsidiaries . . . . . . . . . . . . . . . . . . . . . . .
29
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . .
30
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . .
30
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
Treasury Yield . . . . . . . . . . . . . . . . . . . . . . . . . .
00
Xxxxxx Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . .
30
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . .
30
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . .
31
U.S. Government Obligations . . . . . . . . . . . . . . . . . . .
31
vice president . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
Wholly-owned Subsidiary . . . . . . . . . . . . . . . . . . . . .
31
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . .
31
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . .
32
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . .
32
SECTION 2.2 Form of Trustee's Certificate of Authentication . . .
32
SECTION 2.3 Amount Unlimited Issuable in Series . . . . . . . . .
33
SECTION 2.4 Authentication and Delivery of Securities . . . . . .
36
SECTION 2.5 Execution of Securities and Guarantees . . . . . . .
40
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . .
40
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest . . . . . . . . . . . . . . . . . . . .
41
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . .
41
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . .
44
SECTION 2.10 Cancellation of Securities; Disposition Thereof . .
45
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . .
46
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . .
46
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR . . . . . . .
47
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . .
47
SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . .
47
SECTION 3.3 No Interest Extension . . . . . . . . . . . . . . . .
47
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office .
47
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . . .
48
SECTION 3.6 Limitation on Indebtedness . . . . . . . . . . . . .
49
SECTION 3.7 Limitation on Restricted Payments . . . . . . . . . .
50
SECTION 3.8 Limitation on Transactions with Affiliates . . . . .
53
SECTION 3.9 Disposition of Proceeds of Asset Sales . . . . . . .
53
SECTION 3.10 Limitation on Liens . . . . . . . . . . . . . . . .
59
SECTION 3.11 Limitation Upon Other Senior Subordinated
Indebtedness . . . . . . . . . . . . . . . . . .
59
SECTION 3.12 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries . . . . . . .
59
SECTION 3.13 Limitation on Guaranties . . . . . . . . . . . . . .
61
SECTION 3.14 Purchase of Notes Upon Change in Control . . . . . .
62
SECTION 3.15 Payment of Taxes and Other Claims . . . . . . . . . 65
SECTION 3.16 Commission Reports and Reports to Holders of
Notes . . . . . . . . . . . . . . . . . . . . . .
65
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER, THE GUARANTOR AND THE TRUSTEE . . . . . . . .65
SECTION 4.1 Issuer and Guarantor to Furnish Trustee
Information as to Names and Addresses of
Securityholders . . . . . . . . . . . . . . . . .65
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists . . . . . . . . . . . . . . . . . . . . . .66
SECTION 4.3 Reports by the Issuer and Guarantor . . . . . . . . .67
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . 68
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . 70
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . .
70
SECTION 5.2 Acceleration of Maturity; Rescission . . . . . . . .
73
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . .
73
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . .
74
SECTION 5.5 Trustee May Enforce Claims without Possession of
Notes . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 5.6 Application of Money Collected . . . . . . . . . . .
75
SECTION 5.7 Limitations on Suits . . . . . . . . . . . . . . . .
76
SECTION 5.8 Unconditional Right of Holders to Receive Payment . .
76
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . .
77
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . .
77
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . .
77
SECTION 5.12 Control by Holders of Notes . . . . . . . . . . . .
77
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . .
77
SECTION 5.14 Waiver of Stay or Extension Laws . . . . . . . . . .
78
SECTION 5.15 Notice of Defaults . . . . . . . . . . . . . . . . .
78
ARTICLE SIX
CONCERNING THE TRUSTEE . . . . . . . . . . .
78
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . 78
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . 80
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof . . .81
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc. . . . . . . . . . . . . . . . . 81
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . 81
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim . . . . . . . . . . . . . . . . . 82
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . 83
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series . . . . . 83
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee . . . . . . . . . . . . . . . . . . . . . 84
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . 85
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee . . . . . . . . . . . . . 86
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. . . . . . . . . . . . . . . . . . . . . . 87
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . .87
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS . . . . . . . . 88
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . 88
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities . . . . . . . . . . . . . . . . . . 89
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . 89
SECTION 7.4 Securities Owned by Issuer and Guarantor Deemed
Not Outstanding . . . . . . . . . . . . . . . . 89
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . 90
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . .
90
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES . . . . . . . . . . .
91
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . 91
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . . . 93
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . 95
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . 95
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . .
95
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION .
96
SECTION 9.1 Issuer or Guarantor May Consolidate, etc., on
Certain Terms . . . . . . . . . . . . . . . . . .
96
SECTION 9.2 Successor Corporation to be Substituted . . . . . . .
97
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . . .
98
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS . . . . . . .
98
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . .
98
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities . . . . . . . . . . . . . .
102
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . .
102
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . . .
102
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . .
103
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . .
103
SECTION 11.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issuer and Guarantor Exempt
from Individual Liability . . . . . . . . . . . . 103
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities . . . . . . . .
103
SECTION 11.3 Successors and Assigns of Issuer and Guarantor
Bound by Indenture . . . . . . . . . . . . . . .
103
SECTION 11.4 Notices and Demands on Issuer, Guarantor, Trustee
and Holders of Securities . . . . . . . . . . . . 103
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . .
104
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . .
105
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . .
106
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . .
106
SECTION 11.9 Submission to Jurisdiction . . . . . . . . . . . . .
106
SECTION 11.10 Counterparts . . . . . . . . . . . . . . . . . . .
106
SECTION 11.11 Effect of Headings . . . . . . . . . . . . . . . .
107
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . .
107
SECTION 12.1 Right of Redemption . . . . . . . . . . . . . . . .
107
SECTION 12.2 Applicability of Article . . . . . . . . . . . . . .
107
SECTION 12.3 Election to Redeem; Notice to Trustee . . . . . . .
107
SECTION 12.4 Selection by Trustee of Notes to Be Redeemed . . . .
107
SECTION 12.5 Notice of Redemption . . . . . . . . . . . . . . . .
107
SECTION 12.6 Deposit of Redemption Price . . . . . . . . . . . .
108
SECTION 12.7 Notes Payable on Redemption Date . . . . . . . . . .
109
SECTION 12.8 Notes Redeemed in Part . . . . . . . . . . . . . . .
109
ARTICLE THIRTEEN
SUBORDINATION . . . . . . . . . . . . . .
109
SECTION 13.1 Securities Subordinated to Senior Indebtedness of
the Issuer . . . . . . . . . . . . . . . . . . .109
SECTION 13.2 Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior
Indebtedness of the Issuer . . . . . . . . . . .
113
SECTION 13.3 Payment Permitted If No Default . . . . . . . . . .
113
SECTION 13.4 Disputes with Holders of Certain Senior
Indebtedness of the Issuer . . . . . . . . . . .
114
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition .
114
SECTION 13.6 Trustee to Effectuate Subordination . . . . . . . .
115
SECTION 13.7 Rights of Trustee as Holder of Senior
Indebtedness of the Issuer . . . . . . . . . . .
115
SECTION 13.8 Article Applicable to Paying Agents . . . . . . . .
115
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior
Indebtedness of the Issuer . . . . . . . . . . .
115
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuer . . . . . . . . . . .116
ARTICLE FOURTEEN
GUARANTEES . . . . . . . . . . . . . .
116
SECTION 14.1 Guarantee . . . . . . . . . . . . . . . . . . . . .
116
SECTION 14.2 Subrogation . . . . . . . . . . . . . . . . . . . .
117
SECTION 14.3 Execution and Delivery of Guarantees . . . . . . . .
118
SECTION 14.4 Agreement to Subordinate . . . . . . . . . . . . . .
118
FORM OF AMENDED AND RESTATED INDENTURE
FORM OF AMENDED AND RESTATED INDENTURE, dated as of December 15,
1993, and amended and restated as of ____________, 199_ (this "Indenture"),
among TRITON ENERGY CORPORATION, a Delaware corporation, as issuer (the
"Issuer"), _______________, a Cayman Islands company, as guarantor (the
"Guarantor"), 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 and the Trustee are parties to the Indenture
dated as of December 15, 1993 (as supplemented by the First Supplemental
Indenture, dated as of December 15, 1993 (the "First Supplemental Indenture")
and the Second Supplemental Indenture, dated as of May 12, 1995, and the Third
Supplemental Indenture, dated as of __________, 1995 (the "Third Supplemental
Indenture")); and
WHEREAS, pursuant to the First Supplemental Indenture, the Issuer
has provided for the issuance of its 9-3/4% Senior Subordinated Discount Notes
due 2000 in the form attached hereto as Exhibit A and in the aggregate
principal amount of $170 million (the "Notes"), which Notes constitute the
only
series of Securities heretofore issued pursuant to the Indenture; and
WHEREAS, the Board of Directors of the Issuer has adopted a Board
Resolution authorizing the Issuer to enter into this Indenture; and
WHEREAS, the Guarantor desires to make the Guarantees provided
herein; and
WHEREAS, the Board of Directors of the Guarantor has adopted a
Board Resolution authorizing the Guarantor to enter into this Indenture; and
WHEREAS, the Issuer has requested the Trustee and the Trustee has
agreed to join in the execution of this Indenture in accordance with the terms
of Section 8.2 of the Indenture, and as contemplated by the Third Supplemental
Indenture, and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Issuer, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
Holders from time to time of the Notes as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
herein or in any indenture supplemental hereto or unless the context otherwise
clearly requires). All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, including terms defined therein by reference
to the Securities Act of 1933, as amended (the "Securities Act"), shall have
the meanings assigned to such terms in said Trust Indenture Act of 1939 and in
said Securities Act as in force at the date of this Indenture (except as
otherwise expressly provided herein or in any indenture supplemental hereto or
unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and
"date of execution and delivery of this Indenture" and other expressions of
similar import refer to the effective date of the original execution and
delivery of this Indenture, viz. as of December 15, 1993.
The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Accreted Amount" as of any date of determination prior to
December 15, 1996 means the sum of (a) the initial offering price of the Notes
and (b)the portion of the original issue discount per Note which shall have
been amortized with respect to such Note through such date, such original issue
discount to be so amortized at the rate of 9-3/4% per annum (such percentage
being expressed as a percentage of the sum of the initial offering price plus
previously amortized original issue discount) using semi-annual compounding of
such rate on each December 15 and June 15, commencing June 15, 1994, from the
date of issuance of the Notes through the date of determination. For any date
on or after December 15, 1996, Accreted Amount shall mean 100% of the
principal amount of the Notes.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from a Person, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition, as the case may be.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person, or any other Person that owns, directly or indirectly, 5%
or more of such Person's Capital Stock. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person, whether through
the ownership of voting securities, by contract or otherwise.
"Asset Sale" means any conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger or
consolidation), directly or indirectly, in any consecutive 12-month period,
in one or a series of related transactions, of (i) any of the Capital Stock
of any Subsidiary or Special Subsidiary (other than the primary issuance and
sale by a Subsidiary or Special Subsidiary of the Capital Stock of such
Subsidiary or Special Subsidiary and other than the sale and issuance of
directors' qualifying shares), (ii) all or substantially all of the properties
and assets of any division or line of business of the Guarantor or any of its
"significant subsidiaries" (as defined in Regulation S-X promulgated by the
Commission under the Exchange Act) or (iii) any other assets of the Guarantor
or any of its Subsidiaries or Special Subsidiaries outside of the ordinary
course of business; provided, however, that with respect to a Special
Subsidiary, clause (iii) above shall only apply to the extent the Guarantor
actually receives by dividend any of the net proceeds directly attributable
thereto. For the purpose of this definition, the term "Asset Sale" shall not
include any conveyance, transfer, lease or disposition of properties or assets
of the Guarantor (A) the gross proceeds of which do not exceed $1,000,000,
(B) that is permitted pursuant to Section 9.1 of the Indenture or (C) that
involves any transfer of Capital Stock, property or assets of a Subsidiary or
Special Subsidiary to the Guarantor or any other Subsidiary or of the
Guarantor to a Restricted Subsidiary.
"Asset Sale Amount" shall have the meaning set forth in Section
3.9(c).
"Asset Sale Offer" shall have the meaning set forth in Section
3.9(c).
"Asset Sale Offer Date" shall have the meaning set forth in
Section
3.9(c).
"Asset Sale Offer Notice" shall have the meaning set forth in
Section 3.9(e).
"Asset Sale Offer Price" shall have the meaning set forth in
Section 3.9(c).
"Asset Sale Purchase Date" shall have the meaning set forth in
Section 3.9(d).
"Asset Sale Purchase Notice" shall have the meaning set forth in
Section 3.9(f).
"Authenticating Agent" shall have the meaning set forth in
Section
6.14.
"Average Quoted Price" means, with respect to any security, the
average of the Quoted Prices of such security for 30 consecutive trading days
ending on the last full trading day prior to the time of determination set by
the Guarantor, which shall be any date no later than 10 days prior to the
proposed incurrence of Indebtedness.
"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 the Guarantor, as the case may be, or any committee of that 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 or the Guarantor, as
the case may be, 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.
"Capital Stock" means, as applied to any Person, any and all
shares, interests, participations, rights or other equivalents (however
designated) of such Person's capital stock whether now outstanding or issued
after the date of the Indenture except for Redeemable Stock.
"Capitalized Lease Obligation" means, as applied to any Person,
any obligation relating to any property (whether real, personal or mixed) by
that Person as lessee which, in conformity with GAAP, is required to be
accounted for as a capital lease on the balance sheet of that Person.
"Cash Equivalents" means money, checks, demand deposit accounts,
certificates of deposit or acceptances with a maturity of 180 days or less of
any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$300,000,000, commercial paper with a maturity of 180 days or less issued by a
corporation (except an Affiliate of the Guarantor) organized under the laws of
any state of the United States of America or the District of Columbia and
rated at least A-1 by Standard & Poor's Corporation and at least P-1 by
Xxxxx'x Investors Service, Inc. and other instruments or investments of
equivalent liquidity and safety.
"Change in Control" of the Guarantor means the occurrence of any
of the following: (i) any Person other than the Guarantor, any Subsidiary of
the Guarantor, any Special Subsidiary or any employee benefit plan of either
the Guarantor or any Subsidiary of the Guarantor or any Special Subsidiary,
files a Schedule 13D or 14D-1 under the Exchange Act (or any successor schedule,
form or report) disclosing that such Person has become the beneficial owner of
40% or more of the total combined voting power of the common stock and other
voting Capital Stock of the Guarantor entitled to vote immediately in the
election of directors, (ii) there shall be consummated any consolidation or
merger of the Guarantor (a) in which the Guarantor is not the continuing or
surviving corporation or (b) pursuant to which the common stock of the
Guarantor would be converted into cash, securities or other property, in each
case other than a consolidation or merger of the Guarantor in which the holders
of the Guarantor's common stock immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common equity of the
continuing or surviving corporation immediately after the consolidation or
merger or (iii) all or substantially all the Guarantor's assets are sold to
any Person.
"Change in Control Notice" shall have the meaning set forth in
Section 3.14(c).
"Change in Control Offer" shall have the meaning set forth in
Section 3.14(c).
"Change in Control Purchase Date" shall have the meaning set
forth
in Section 3.14(a).
"Change in Control Purchase Notice" shall have the meaning set
forth in Section 3.14(c).
"Change in Control Purchase Price" shall have the meaning set
forth in Section 3.14(a).
"Colombian Assets" means (i) the Capital Stock of Triton Colombia,
(ii) the Capital Stock of any Subsidiary of Triton Colombia, (iii) the shares,
interests, participations, rights or other equivalent means of ownership owned
by the Guarantor or a Subsidiary of the Guarantor in any Joint Venture,
provided such Joint Venture owns, directly or indirectly, oil and gas
properties or other property interests or rights to oil and gas production in
the Xxxxxxxx de las Atalayas and the Tauramena contract areas in Colombia,
(iv) the Capital Stock of any Subsidiary of the Guarantor (other than Triton
Colombia and its Subsidiaries) that owns, directly or indirectly, oil and gas
properties or other property interests or rights to oil and gas properties in
the Xxxxxxxx de las Atalayas and the Tauramena contract areas in Colombia and
(v) assets, tangible and intangible, of the Guarantor or any Subsidiary or
Joint Venture referred to in clauses (i) through (iv) of this definition that
are located in or pertain directly to the operations of the Guarantor or any
of its Subsidiaries in the Xxxxxxxx de las Atalayas and the Tauramena
contract areas in Colombia.
"Colombian Sale Redemption Price" means (i) with respect to any
repurchase date prior to December 15, 1996, a price equal to 100% of Accreted
Amount of the Notes to be so redeemed plus the Make-Whole Premium, (ii) with
respect to any repurchase date on or after December 15, 1996 and before
December 15, 1997, a price equal to 100% of the principal amount of the Notes
to be so redeemed plus accrued and unpaid interest to the repurchase date plus
the Make-Whole Premium, and (iii) with respect to any repurchase date on or
after December 15, 1997, at the Redemption Price then applicable with respect
to an optional redemption pursuant to the terms of the Indenture plus accrued
and unpaid interest to the repurchase date.
"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 Income" of the Guarantor means, for any period
taken as one accounting period, the net income (or loss) of the Guarantor on a
consolidated basis for such period determined in conformity with GAAP.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets included on the most recent consolidated balance sheet of the Guarantor
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.
"Consolidated Net Worth" means, with respect to any Person, as at
any date of determination, the consolidated stockholders' equity (or like
balance sheet designation) of such Person as determined in accordance with
GAAP.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Currency Agreement" means any foreign exchange contract,currency
swap agreement or other similar agreement or arrangement designed to protect
the Guarantor or any of its Subsidiaries or the Special Subsidiaries against
fluctuations in currency values.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Deficiency" shall have the meaning set forth in Section 3.9(c).
"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.
"Excess Proceeds" shall have the meaning set forth in Section
3.9(b).
"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
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the
date of the Indenture.
"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.
"guarantee" means, as applied to any obligation, (i) a guaranty
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any
way the payment or performance (or payment of damages in the event of
non-performance) of any part or all of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the guarantee set forth in Exhibit B hereto.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter,
"Guarantor" shall mean such successor corporation.
"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" of any Person means, without duplication, with
respect to any Person, any indebtedness, whether or not contingent, in respect
of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements with respect
thereto) or representing the balance deferred and unpaid of the purchase price
of any property (including pursuant to Capitalized Lease Obligations and any
conditional sale or other title retention agreement), except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP (but does not include
contingent liabilities which appear only in a footnote to a balance sheet),
and Indebtedness shall also include, to the extent not otherwise included,
the guaranty of items which would be included within this definition and
obligations in respect of Currency Agreements, the notional amount with
respect to Interest Rate Agreements and the liquidation value of Preferred
Stock (except that Indebtedness shall not include Preferred Stock of the
Guarantor or Preferred Stock of the Issuer).
"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.
"Intercompany Agreement" means an intercompany agreement
substantially in the form attached as Exhibit C to this Indenture.
"Interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"Interest Rate Agreements" means the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect such Person or
any of its Subsidiaries against fluctuations in interest rates.
"Investment" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business, which are recorded
as accounts receivable on the balance sheet of any Person) or other extension
of credit or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities issued by, any other Person.
"Issuer" means Triton Energy Corporation, a Delaware corporation,
and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer or the Guarantor, as the case may be, which is signed in the name of
the Issuer or the Guarantor, as the case may be, by the chairman of the Board
of Directors, the president or any vice president of the Issuer or the
Guarantor, as the case may be, and delivered to the Trustee.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form, provided
that, as to any such arrangement in corporate form, such corporation shall
not, as to any Person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such Person is a party.
"Lien" means any mortgage, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to
give any security interest).
"Make-Whole Premium" means, (I) at any time prior to December 15,
1996, the greater of (i) 1.0% of the Accreted Amount of such Note at such time
and (ii) the excess of (A) the present value at such time of the Redemption
Price of such Note as of any optional Redemption Date designated by the Issuer
and all cash interest which would be payable or would accrue thereon through
such Redemption Date, computed using a discount rate equal to the Treasury
Yield plus 100 basis points, over (B) the Accreted Amount of such Note at such
time or (II) at any time on or after December 15, 1996, the greater of (i)
1.0% of the principal amount of such Note plus accrued and unpaid interest
to such date and (ii) the excess of (A) the present value at such time of
the Redemption Price of such Note, computed as provided in clause (I)(ii)(A)
above, over (B) the principal amount of such Note and accrued and unpaid
interest thereon at such time.
"Material Subsidiary" means, at the time of determination, any
Subsidiary or Special Subsidiary of the Guarantor that (a) accounted for more
than five percent of the consolidated revenues of the Guarantor for the most
recently completed fiscal year of the Guarantor or its predecessor or (b) was
the owner of more than five percent of the consolidated assets of the
Guarantor as at the end of such fiscal year, all as shown on the consolidated
financial statements of the Guarantor or its predecessor for such fiscal
year.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Guarantor or any Subsidiary) net of (i) brokerage
commissions and other reasonable fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Indebtedness where payment of such Indebtedness is
required in connection with such Asset Sale and (iv) appropriate amounts to
be provided by the Issuer or any Subsidiary, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Guarantor or any Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale.
"Notes" means the Issuer's 9-3/4% Senior Subordinated Discount
Notes due 2000 in the aggregate principal amount of $170 million.
"1997 Guarantee" means the Guarantor's Guarantee in respect of
the 1997 Notes.
"1997 Notes" means the Issuer's 12 1/2% Senior Subordinated
Discount Notes due 1997 in the aggregate principal amount of $240 million.
"Officers' Certificate", 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, or the Guarantor, as
the case may be. Each such certificate shall include the statements provided
for in Section 11.5 if and to the extent required by the provisions of such
Section 11.5. One of the officers signing each of the Officers' Certificate
given pursuant to Section 4.3, shall be the principal executive, financial or
accounting officer of the Issuer and the Guarantor, respectively.
"Oil and Gas Reserve Estimate" means, on an after-tax basis, the
standardized measure of discounted future net cash inflows relating to proved
oil and gas reserves as calculated in accordance with Statement of Financial
Accounting Standards No. 69, as in effect on the date of this Indenture, as
adjusted for any (i) back-in interests or interest equalization and
unitization arrangements with third parties and (ii) acquisitions, transfers
or dispositions of interests in such reserves since the date as of which such
standardized measure has been calculated (it being understood that in the case
of any acquisition, the right to include such estimates shall be dependent
upon the availability of such estimate from a nationally recognized
engineering firm).
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or the Guarantor or by such other legal counsel who
may be an employee of or counsel to the Issuer or the Guarantor and who shall
be reasonably satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 11.5, if and to the extent required
by the provisions of such Section 11.5.
"Original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face
of such Security).
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Article Five.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which
the provisions of Article Ten hereof shall not be applicable), or
portions thereof, for the payment or redemption of which moneys or
U.S. Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee
or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer shall act as its own
paying agent), provided that, if such Securities, or portions thereof,
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security
is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the portion of
the principal amount thereof that would be due and payable as of the date of
such determination (as certified by the Issuer to the Trustee) upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Permitted Indebtedness" means (i) the Notes and the Guarantees;
(ii) the 1997 Notes and the 1997 Guarantee; (iii) Indebtedness of the Issuer
or any of its Subsidiaries or Special Subsidiaries outstanding on the date of
the Indenture; (iv) obligations pursuant to Interest Rate Agreements or
Currency Agreements; (v) with respect to any assets acquired or constructed
after the date of this Indenture (including unimproved real property acquired
prior to the date of this Indenture), Indebtedness under Capitalized Lease
Obligations and purchase money mortgages; (vi) Indebtedness of the Guarantor
or any Subsidiary in respect of trade letters of credit and standby letters
of credit incurred in the ordinary course of business in an aggregate amount
not to exceed $25,000,000 at any time outstanding; (vii) loans or advances
from a Subsidiary to the Guarantor or another Subsidiary, provided that the
obligation of the obliger of such Indebtedness is subject to an Intercompany
Agreement; (viii) Indebtedness of the Guarantor or any Subsidiary consisting
of (A) guaranties, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition or disposition of assets and
(B) guarantees of the Indebtedness of a Restricted Subsidiary, provided,
however, that (I) to the extent such transaction involves an Affiliate, the
obligation of the guarantor of such guarantee is subject to an agreement
substantially in the form of the Intercompany Agreement, (II) such guarantee
is subordinated to the Notes and the Guarantees, and the agreement governing
the guarantee shall include subordination provisions substantially similar to
those set forth in the Indenture subordinating such guarantee to the Notes
and the Guarantees to the same extent as if the Notes were Senior Indebtedness
of the Issuer and the Guarantees were Senior Indebtedness of the Guarantor,
and (III) such incurrence of the guarantee is otherwise permitted under the
provisions of Section 3.7 of the Indenture; (ix) any obligation or liability
of the Guarantor or any Subsidiary in respect of leasehold interests assigned
by the Guarantor or such Subsidiary to any other Person; (x) Indebtedness of
the Guarantor to any Restricted Subsidiary, provided, however, that (I) the
obligation of the obligor of such Indebtedness is subject to an Intercompany
Agreement, (II) such Indebtedness is subordinated to the Notes and the
Guarantees, and the agreement governing such Indebtedness shall include
subordination provisions substantially similar to those set forth in the
Indenture subordinating such Indebtedness to the Notes and the Guarantees
to the same extent as if the Notes were Senior Indebtedness of the Issuer
and the Guarantees were Senior Indebtedness of the Guarantor, and (III)
such incurrence of Indebtedness is otherwise permitted under the provisions
of Section 3.7 of the Indenture; (xi) any renewals, extensions, substitutions,
refinancings or replacements of any Indebtedness, including any successive
extensions, renewals, substitutions, refinancings or replacements so long as
the aggregate amount of Indebtedness represented thereby is not increased by
such renewal, extension, substitution, refinancing or replacement unless
otherwise permitted in the Indenture, such renewal, extension, substitution,
refinancing or replacement does not reduce the average life to stated
maturity or the stated maturity of such Indebtedness and, if the
Indebtedness being renewed, extended, substituted, refinanced orreplaced
is Indebtedness of the Guarantor, such renewal, extension, substitution,
refinancing or replacement shall be Indebtedness of the
Guarantor; and (xii) additional Indebtedness (including Acquired Indebtedness)
having a principal amount outstanding at issuance or at the date of assumption
not to exceed $100 million, at any time outstanding.
"Permitted Investments" means (i) transactions reflected as debits
and credits on the books and records of the Guarantor and entered into in the
ordinary course of business, consistent with past practices, in connection
with the Guarantor's cash management system and ongoing cost and reimbursement
arrangements among the Guarantor and its Restricted Subsidiaries, all in
accordance with GAAP, (ii) Investments in Restricted Subsidiaries, and (iii)
Investments in an aggregate amount not exceeding $20 million outstanding at
any time.
"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
withSection 2.3.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) or
such Person's preferred or preference stock whether now outstanding or issued
after the date of the Indenture, which is preferred as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation of such Person, and includes, without limitation, all classes and
series of preferred or preference stock.
"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.
"Quoted Price" with respect to any security means the last
reported sales price (or, if no sales prices are reported, the average of the
high and low bid prices on the last preceding trading day) of such security on
the New York Stock Exchange Composite Tape or such other international,
national or regional stock exchange upon which such security is listed, or, if
such security is not listed on an international, national or regional stock
exchange, as quoted on the National Association of Securities Dealers
Automated Quotation System or the National Quotation Bureau Incorporated or
similar quotation system. In the absence of one or more such quotations,
the Board of Directors of the Guarantor shall be entitled to determine the
Quoted Price on the basis of such quotations or other information as it
considers appropriate.
"Record date" shall have the meaning set forth in Section 2.7.
"Redeemable Stock" means any equity security that by its terms or
otherwise is required to be redeemed prior to the Stated Maturity of the
Notes, or is redeemable at the option of the holder thereof at any time prior
to the Stated Maturity of the Notes.
"Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to the
Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to the
Indenture.
"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 Payment" shall have the meaning set forth in Section
3.7.
"Restricted Subsidiary" means any Person of which at least 90% of
the total voting power of outstanding shares of Capital Stock entitled
(without regard to the occurrence of any contingency which does or may suspend
or dilute the voting rights of such stock) to vote in the election of directors,
managers or trustees thereof is at such time owned or controlled by the
Guarantor directly or through one or more of the other Subsidiaries of the
Guarantor or a combination thereof, provided, however, that Triton Colombia
shall be deemed a Restricted Subsidiary for all purposes of this definition
for as long as the Guarantor shall retain the beneficial ownership of any of
its Capital Stock having the right to vote on matters brought before
shareholders generally, and provided, further, that a Special Subsidiary shall
be deemed a Restricted Subsidiary at such time as it becomes at least 90% owned
in accordance with this definition.
"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 of the Guarantor" shall mean (i) the
principal of and premium, if any, and interest on and all other monetary
obligations of every kind or nature due on or in connection with any
Indebtedness of the Guarantor (other than as otherwise provided in this
definition), whether outstanding on the date of the Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Guarantees, and (ii) Indebtedness
outstanding or incurred after the date of the Indenture under the Guarantor's
bank agreements. Notwithstanding the foregoing, Senior Indebtedness of the
Guarantor shall not include (a) the principal of and premium, if any, and
interest on and all other monetary obligations of every kind or nature due on
or in connection with any Indebtedness of the Guarantor to a Subsidiary or any
other Affiliate of the Guarantor or any of such Affiliate's subsidiaries, (b)
Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Guarantor (including the 1997 Guarantees, as to which the
Guarantees shall rank pari passu in right of payment), (c) Indebtedness that,
when incurred, was without recourse to the Guarantor, (d) any liability for
federal, state, local or other taxes owed or owing by the Guarantor, (e) that
portion of any Indebtedness which at the time of issuance is issued in
violation of the Indenture, (f) Indebtedness that is represented by Redeemable
Stock, (g) amounts owing under leases (other than any Capitalized Lease
Obligations), or (h) all amounts owed (except to banks and other financing
institutions) for goods, materials or services purchased in the ordinary
course of business or for compensation to employees.
"Senior Indebtedness of the Issuer" shall mean (i) the principal of
and premium, if any, and interest on and all other monetary obligations of
every kind or nature due on or in connection with any Indebtedness of the
Issuer (other than as otherwise provided in this definition), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes, and (ii) Indebtedness outstanding or incurred after the
date of the Indenture under the Issuer's bank agreements. Notwithstanding the
foregoing, Senior Indebtedness of the Issuer shall not include (a) the
principal of and premium, if any, and interest on and all other monetary
obligations of every kind or nature due on or in connection with any
Indebtedness of the Issuer to a Subsidiary or any other Affiliate of the
Issuer or any of such Affiliate's subsidiaries, (b) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of the Issuer
(including the 1997 Notes, as to which the Notes shall rank pari passu in
right of payment), (c) Indebtedness that, when incurred, was without recourse
to the Issuer, (d) any liability for federal, state, local or other taxes owed
or owing by the Issuer, (e) that portion of any Indebtedness which at the time
of issuance is issued in violation of the Indenture, (f) Indebtedness that is
represented by Redeemable Stock, (g) amounts owing under leases (other than
any Capitalized Lease Obligations), or (h) all amounts owed (except to banks
and other financing institutions) for goods, materials or services purchased
in the ordinary course of business or for compensation to employees.
"Senior Subordinated Indebtedness" means the Securities, the
Guarantees and any other Indebtedness of the Issuer or the Guarantor that
ranks pari passu with the Securities. Any Indebtedness of the Issuer or the
Guarantor that is subordinate or junior by its terms in right of payment to
any other Indebtedness of the Issuer 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 the Issuer or the Guarantor which is not Senior Indebtedness
of the Issuer or Senior Indebtedness of the Guarantor, respectively.
"Special Subsidiaries" means Triton Europe p.l.c., Crusader
Limited, New Zealand Petroleum Company Limited and Aero Services
International, Inc.
"Stated Maturity" when used with respect to any Note, means the
date specified in such Note as the fixed date on which the principal of such
Note is due and payable.
"Subordinated Indebtedness" means the Securities, the Guarantees,
any other Senior Subordinated Indebtedness and any other Indebtedness that is
subordinate or junior in right of payment to Senior Indebtedness of the Issuer
or Senior Indebtedness of the Guarantor.
"Subsidiary" means any Person of which at least 50% of the total
voting power of outstanding shares of Capital Stock entitled (without regard
to the occurrence of any contingency which does or may suspend or dilute the
voting rights of such stock) to vote in the election of directors, managers or
trustees thereof is at such time owned or controlled, by any Person directly
or through one or more of the other Subsidiaries of that Person or a
combination thereof, provided, however, that Triton Colombia shall be deemed a
Subsidiary of the Guarantor for all purposes of this definition and the
Indenture for as long as the Guarantor shall retain the beneficial ownership of
any of its Capital Stock having the right to vote on matters brought before
shareholders generally, and provided, further, that for purposes of this
definition, the term Subsidiaries shall not include any Special Subsidiary
until such time as it becomes a Restricted Subsidiary.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two Business
Days prior to the applicable repurchase date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the then remaining term of the Notes to the optional
Redemption Date designated for purposes of the calculation of the Make-Whole
Premium, provided that if such remaining term is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Treasury Yield shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given,
except that if such remaining term is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Triton Colombia" means Triton Colombia, Inc., one of the
Guarantor's Wholly-owned Subsidiaries.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date hereof, provided, however, that such Subsidiary shall
not be a successor, directly or indirectly, to any Restricted Subsidiary, and
(b) any Subsidiary substantially all the assets of which consist of stock or
other securities of a Subsidiary or Subsidiaries of the character described in
clause (a) of this paragraph, unless and until such Subsidiary shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"Vice president," when used with respect to the Issuer, the
Guarantor 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."
"Voting Stock" means the Capital Stock of any class or kind
ordinarily (without regard to the occurrence of any contingency) having the
power to vote for the election of directors of the Issuer or the Guarantor.
"Wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person, all of the outstanding shares of Capital Stock
having the right to participate in the residual equity of such Subsidiary
(other than qualifying shares required to be owned by directors) of which are
owned directly by such Person or a wholly-owned Subsidiary of such Person.
"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 Notes
shall be in the form attached hereto as Exhibit A.
The Guarantees to be endorsed on the Securities of each series
shall be in substantially such form as shall be established by or pursuant to
a Board Resolution of the Guarantor (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 rules of any securities
exchange or to conform to general usage, all as may be determined by the
person duly authorized thereto executing such Guarantees, all as evidenced
by such execution. The Guarantees shall be in the form attached hereto as
Exhibit B.
The definitive Securities and Guarantees 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 and
the Guarantees as evidenced by their execution of such Securities and the
Guarantees.
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______________________________
as 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
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 and
the related Guarantees shall be subordinate and junior in right of payment,
to the extent and in the manner set forth in Article Fourteen, to all Senior
Indebtedness of the Guarantor. There shall be established in or pursuant to
one or more Board Resolutions (and, to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any
series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, on which any such interest shall be payable and on
which a record shall be taken for the determination of Holders to whom
any such interest is payable or the method by which such rate or rates
or date or dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of, premium, if any, and interest, if any, on Securities of
the series shall be payable (if other than as provided in Section
3.2) and the office or agency for the Securities of the series
maintained by the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices (or the method by
which such price or prices shall be determined or both) at which, the
form or method of payment therefor if other than in cash and any
terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series may be
so redeemed, purchased or repaid, in whole or in part pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor
if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve)
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of such series;
(13) any deleted, modified or additional events of default or
remedies or any deleted, modified or additional covenants with
respect to the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be
applicable to Securities of such series;
(15) any provision relating to the issuance of Securities of
such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrete, if any, and the date or dates
from or to which or period or periods during which such original
issue discount shall accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which
payment of the principal of, premium, if any, and interest, if any,
on the Securities of such series shall be payable;
(17) if other than 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; and
(19) any other terms of the series.
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to
above with respect to Securities of any series and the related Guarantees
filed with the Trustee on or before the initial issuance of the Securities of
such series and the related Guarantees shall be incorporated herein by
reference with respect to Securities of such series and the related
Guarantees and shall thereafter be deemed to be a part of the Indenture for
all purposes relating to Securities of such series and the related Guarantees
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 having endorsed
thereon Guarantees executed by the Guarantor to the Trustee for authentication
together with the applicable documents referred to below in this Section 2.4,
and the Trustee shall thereupon authenticate and deliver such Securities to,
or upon the order of the Issuer (contained in the Issuer Order referred to
below in this Section 2.4) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by
or pursuant to such Issuer Order and procedures. If provided for in such
procedures and agreed to by the Trustee, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer
or its duly authorized agent, which instructions shall be promptly confirmed
in writing. In authenticating the Securities of such series and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (2), (3) and (4) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such
series) and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities of such series are not
to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by an Issuer Order, (c) the maturity date or dates, original
issue date or dates, interest rate or rates, if any, and any other
terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures,(d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued,
any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such
series were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of
the Securities have been established pursuant to Sections 2.1 and
2.3 and comply with this Indenture and covering such other matters as
the Trustee may reasonably request; and
(4) either an Opinion of Counsel, or a letter from legal counsel
addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series and the
related Guarantees 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 and the related Guarantees 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 or the Guarantor, as the case may be, and
will have been established in conformity with the provisions of
this Indenture;
(c) when the Securities of such series have been executed bythe
Issuer and the Guarantees endorsed thereon have been executed
by the Guarantor 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 and the Guarantor, respectively, 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 and the
Guarantor, as the case may be, of, and the performance by the
Issuer and the Guarantor, as the case may be, of its obligations
under, the Securities of such series and the Guarantees endorsed
thereon will not contravene any provision of applicable law or
the articles of incorporation or bylaws of the Issuer or the
Guarantor or any agreement or other instrument binding upon the
Issuer or the Guarantor or any of its Subsidiaries that is
material to the Guarantor 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, the Guarantor or any Subsidiary, and
no consent, approval or authorization of any governmental body or
agency is required for the performance by the Issuer and the
Guarantor of their respective obligations under the Securities and
the Guarantees, 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 and the Guarantor of the supplemental
indenture with respect to the series of Securities have been complied with,
the Issuer and the Guarantor each 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 and the Guarantor 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 (and the Guarantor
shall execute the Guarantees endorsed thereon) 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 and Guarantees. 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. The Guarantees shall
be signed on behalf of the Guarantor by the chairman of the Board of
Directors, the president, any vice president or the treasurer of the
Guarantor, 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 seals of the Issuer and the Guarantor may be in the form of facsimiles
thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Securities and the Guarantees, respectively. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security
or Guarantee that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer or the Guarantor who shall have
signed any of the Securities or the Guarantees endorsed thereon shall cease to
be such officer before the Security or Guarantee so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security and the Guarantee endorsed thereon nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Security or
Guarantee endorsed thereon had not ceased to be such officer of the Issuer or
the Guarantor, as the case may be; and any Security or Guarantee endorsed
thereon may be signed on behalf of the Issuer and the Guarantor, as the case
may be, by such persons as, at the actual date of the execution of such
Security or Guarantee, shall be the proper officers of the Issuer and the
Guarantor, as the case may be, 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
and Guarantees endorsed thereon 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
authenticationby the Trustee includes authentication by an agent appointed
pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect
to the Securities of any series, if not so established, in denominations of
$1,000 and any integral multiple thereof. The Securities of each series shall
be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same may
determine with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated
by Section 2.3.
The Person in whose name any Security of any series is registered
at the close of business on any record date applicable to a particular series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Securities not less than 15 days
preceding such subsequent record date or (b) as determined by such other
procedure as is mutually acceptable to the Issuer and the Trustee. The term
"record date" as used with respect to any interest payment date (except a date
for payment of defaulted interest) for the Securities of any series shall mean
the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Securities of each series and the registration of
transfer of Securities of such series. Each such register shall be in written
form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such register
or registers shall be open for inspection and available for copying by the
Trustee.
Upon due presentation for registration of transfer of any Security
of any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount, each such Security having endorsed thereon a Guarantee
executed by the Guarantor.
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, each such Security having endorsed thereon a
Guarantee executed by the Guarantor, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2. All Securities surrendered upon any
exchange or registration of transfer provided for in this Indenture shall be
promptly cancelled and returned to the Issuer.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing or publication of notice of redemption of
Securities of such series to be redeemed, (b) any Securities selected, called
or being called for redemption, in whole or in part, except, in the case of
any Security to be redeemed in part, the portion thereof not so to be redeemed
or (c) any Security if the Holder thereof has exercised his right, if any, to
require the Issuer to repurchase such Security in whole or in part, except the
portion of such Security not required to be repurchased.
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, having endorsed
thereon a Guarantee executed by the Guarantor, 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, having endorsed thereon a Guarantee executed by
the Guarantor, 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, having
endorsed thereon a Guarantee executed by the Guarantor, 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, having endorsed thereon a
Guarantee or Guarantees executed by the Guarantor, 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, having a
Guarantee endorsed thereon, 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, having
endorsed thereon a Guarantee executed by the Guarantor, 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, the Guarantor
and to the Trustee and any agent of the Issuer, the Guarantor or the Trustee
such security or indemnity as may be required by the Trustee or the Issuer or
the Guarantor or any such agent to indemnify and defend and to save each of
the Trustee, the Issuer and the Guarantor 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, the Guarantor and the Trustee and
any agent of the Issuer, the Guarantor 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, the Guarantor and the Trustee and any agent of the Issuer, the
Guarantor 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 and the Guarantor with respect to the Guarantees
endorsed thereon, 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, the Guarantor or any agent of
the Issuer or the Guarantor 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 or the Guarantor
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, and having endorsed thereon Guarantees
duly executed by the Guarantor, substantially in the form of the definitive
Guarantees, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
and the Guarantor 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 endorsed thereon Guarantees executed by the Guarantor and
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 AND THE GUARANTOR
Sections 3.6 through and including 3.16 shall apply only to the
Notes unless otherwise specified in the supplemental indenture relating to any
series of Securities hereafter created.
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 and the Guarantor 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 or the Guarantor in respect of the Securities or of this Indenture may
be served. In case the Issuer or the Guarantor shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the
Trustee of any change in the location thereof, presentation may be made and
notice and demand may be served in respect of the Securities or of this
Indenture at the Corporate Trust Office. Each of the Issuer and the
Guarantor hereby initially designates the Corporate Trust Office for each such
purpose and appoints the Trustee as registrar and paying agent and as the
agent upon whom notices and demands may be served with respect to the
Securities.
SECTION 3.3 No Interest Extension. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuer will
not directly or indirectly extend or consent to the extension of the time for
the payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all
Securities of any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer
shall appoint a paying agent other than the Trustee, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such paying
agent shall agree with the Trustee, subject to the provisions of this Section
3.5,
(1) that it will hold all sums held by it as such paying agent
for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any
payment of the principal of, premium, if any, or interest, if any,
on the Securities when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on
or before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuer (or by any other
obligor under the Securities) to make any payment of the principal of,
premium, if any, or interest, if any, on the Securities when the same shall
become due and payable.
(c) Anything in this Section 3.5 to the contrary
notwithstanding,the Issuer may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by it, or any paying
agent hereunder, as required by this Section 3.5, such sums to be held by the
Trustee upon the trusts herein contained.
(d) Anything in this Section 3.5 to the contrary
notwithstanding, any agreement of the Trustee or any paying agent to hold
sums in trust as provided in this Section 3.5 is subject to Sections 10.3 and
10.4.
(e) Whenever the Issuer shall have one or more paying agents, it
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a paying agent a sum sufficient to pay the
principal, premium, if any, or interest, if any, so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, if any, or interest, if any, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or failure
so to act.
SECTION 3.6 Limitation on Indebtedness. The Guarantor will not,
and will not permit any of its Subsidiaries to, directly or indirectly, incur,
create, assume, guarantee or in any other manner become directly or indirectly
liable or responsible for the payment of, any Indebtedness (including any
Acquired Indebtedness), other than Permitted Indebtedness, unless at the time
of such event (a) (i) any such Indebtedness (other than Senior Indebtedness of
the Guarantor and Senior Indebtedness of the Issuer) has no sinking fund or
amortization payment date or final maturity date prior to the Stated Maturity
of the Notes and (ii) in the case of Indebtedness subordinated in right of
payment to the Notes or the Guarantees thereof, the instrument evidencing such
Indebtedness shall include subordination provisions substantially similar to
those set forth in Articles Thirteen and Fourteen subordinating such
Indebtedness to the Notes and the Guarantees, as the case may be, to the same
extent as if the Notes were Senior Indebtedness of the Issuer and the
Guarantees were Senior Indebtedness of the Guarantor, in each case, with
respect to such Indebtedness and (b) after giving effect thereto and to any
acquisition being financed through the incurrence of such Indebtedness
(including Acquired Indebtedness) on a pro forma basis, either (i) the ratio
expressed as a percentage of (A) the Indebtedness of the Guarantor and its
Restricted Subsidiaries to (B) the sum of (1) the Oil and Gas Reserve Estimate
with respect to the Guarantor and the Restricted Subsidiaries plus (2) the
value of the Guarantor's direct or indirect percentage ownership in
publicly-held Subsidiaries (other than its Restricted Subsidiaries) engaged in
oil and gas exploration, development, production or transportation and,
without duplication, the Special Subsidiaries, in each case based upon the
Average Quoted Price of the common stock of such Subsidiaries or Special
Subsidiaries, shall not be greater than 40% or (ii) the ratio expressed as a
percentage of (A) the Indebtedness of the Guarantor and its Restricted
Subsidiaries to (B) the sum of (1) the Indebtedness of the Guarantor and its
Restricted Subsidiaries plus (2) the product of the number of outstanding
shares of the Guarantor's Capital Stock as of the date of determination
multiplied by the Average Quoted Price of such Capital Stock plus (3) the
product of the numberof outstanding shares of the Issuer's Capital Stock
(other than any shares held by the Guarantor or any Subsidiary) as of the
date of determination multiplied by the Average Quoted Price of such Capital
Stock, shall not be greater than 25%. For purposes of this calculation, (i)
a Subsidiary shall be considered publicly-held if there is a Quoted Price
available for its Capital Stock and (ii) the Oil and Gas Reserve Estimate
shall include, in connection with an acquisition, on a pro forma basis the
Oil and Gas Reserve Estimate, if any, of any acquired Person and shall be
determined as of the end of the fiscal year of the Guarantor and, if
applicable, the acquired Person, most recently concluded if then available,
but if not then available, the end of the previous fiscal year of the
Guarantor and, if applicable, the acquired Person; provided,
however, that the Guarantor may, at its option, make such calculation
utilizing a more recent Oil and Gas Reserve Estimate in lieu of the Oil and
Gas Reserve Estimate referred to in the preceding clause if (a) such
estimate is prepared, to the extent of at least 85% of the quantities of
proven oil and gas reserves set forth in such estimate (which shall be
determined on the basis that six thousand cubic feet of gas equal one
barrel of oil), by a nationally recognized independent petroleum engineer,
(b) such Oil and Gas Reserve Estimate is determined on a basis consistent
with the estimate prepared at fiscal year end, except that the oil and gas
prices and currency prices utilized therein shall be as of the date of such
more recent estimate and (c) an officer authorized by the Guarantor delivers
to the Trustee a certificate to the effect that such estimate has been
prepared in accordance with the requirements of Section 3.6.
SECTION 3.7 Limitation on Restricted Payments. The Guarantor
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Guarantor's Capital Stock (other than
(A) the payment of a dividend within 60 days after the date of
declaration thereof, (B) dividends or distributions payable in shares
of its Capital Stock or in options, warrants or other rights to
purchase such Capital Stock and (C) dividends on Preferred Stock, w
which Preferred Stock by its terms is not mandatorily redeemable or
redeemable at the option of the holder thereof prior to the Stated
Maturity of the Notes, provided that the dividend rate on such
Preferred Stock on the date of its issuance shall not exceed the yield
to maturity on the Notes calculated on the basis of the average Quoted
Prices of the Notes for the 20 consecutive trading days ending 5 days
prior to the issuance of such Preferred Stock, but excluding dividends
or distributions payable in Redeemable Stock or in options, warrants
or other rights to purchase Redeemable Stock except for dividends on
such Redeemable Stock payable in shares of Redeemable Stock),
(ii) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Guarantor or any Affiliate thereof, or any
options, warrants or other rights to acquire such Capital Stock
(other than (A) redemption of Preferred Stock that is convertible
into common stock, provided that the average Quoted Price of such
common stock for the 30 consecutive trading days ending on the last
full trading day prior to the date of the notice of such redemption
equals or exceeds 130% of the conversion price of such Preferred
Stock, (B) with respect to any Restricted Subsidiary, purchases or
redemptions pursuant to the Guarantor's Shareholders' Rights Plan
or purchases or redemptions in
the ordinary course of business not to exceed $10,000 a year, (C) in
connection with a transaction whereby a Subsidiary or a Special
Subsidiary becomes a Restricted Subsidiary or a Subsidiary or a
Special Subsidiary is being merged with or into the Guarantor or a
Restricted Subsidiary in accordance with the terms of this Indenture,
and (D) through the issuance of Capital Stock of the Guarantor (other
than Redeemable Stock)),
(iii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value, prior to any date
earlier than six months before any scheduled principal payment,
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness which is subordinated in right of payment to, the prior
payment of the Notes or to the Guarantees, provided, however, that
such Indebtedness may be redeemed in connection with any refinancing
of such Indebtedness so long as the new Indebtedness incurred in such
refinancing is pari passu with, or is subordinated in right of payment
to, the Indebtedness being refinanced and has an average life equal to
or greater than the Indebtedness being refinanced,
(iv) declare or pay any dividend or distribution on any Capital
Stock of any Subsidiary to any Person (other than the Guarantor or a
Restricted Subsidiary) or purchase, redeem or otherwise acquire or
retire for value, any Capital Stock of any Subsidiary (other than with
shares of Capital Stock (except Redeemable Stock) of the Guarantor)
held by any Person (other than the Guarantor or any of its Restricted
Subsidiaries),
(v) incur, create or assume any guarantee of Indebtedness of any
Affiliate (other than guarantees of Indebtedness of a Restricted
Subsidiary by the Guarantor, guarantees of Indebtedness of the
Guarantor by any Subsidiary or guarantees of Indebtedness of any
Subsidiary or Special Subsidiary of the Guarantor by the Guarantor
pursuant to a transaction whereby any such Subsidiary or Special
Subsidiary becomes a Restricted Subsidiary, including, without
limitation, (a) the execution by the obligor of such obligation of an
Intercompany Agreement and (b) the inclusion of provisions in the
guarantee substantially similar to those set forth in Articles
Thirteen and Fourteen which subordinate such guarantee to the Notes
and the Guarantees to the same extent as if the Notes were Senior
Indebtedness of the Issuer and the Guarantees were Senior Indebtedness
of the Guarantor, in each case, with respect to such guarantee,
provided that such guarantee is not otherwise prohibited by the terms
of this Indenture), or
(vi) make any Investment (other than as permitted in the
preceding clauses (ii) and (v) or a Permitted Investment) in any
Person, other than an Investment in a Restricted Subsidiary or any
Special Subsidiary which becomes a Restricted Subsidiary in connection
with such Investment, provided that to the extent applicable (a) the
obligation of the obligor in any such Investment is subject to an
Intercompany Agreement and (b) the inclusion of provisions in the
agreement governing the Investment substantially similar to those set
forth in Articles Thirteen and Fourteen which subordinate the
Investment to the Notes and the Guarantees to the same extent as if
the Notes were Senior Indebtedness of the Issuer and the Guarantees
were Senior Indebtedness of the Guarantor,
(such payments or other actions described in the foregoing clauses (i) through
(vi) are collectively referred to as "Restricted Payments") unless at the time
of and after giving effect to the proposed Restricted Payment (the amount of
any such Restricted Payment, if other than cash, as determined by the Board of
Directors, whose determination shall be evidenced by a Board Resolution) (I)
no Default or Event of Default exists or occurs as a result of such Restricted
Payment, (II) the Guarantor could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in accordance with the
provisions set forth in Section 3.6 (provided that in the case of Restricted
Payments permitted in the preceding clauses (ii), (v) and (vi), the Guarantor
could incur at least $1.00 of additional Indebtedness, including Permitted
Indebtedness) and (III) the aggregate amount expended for all Restricted
Payments (excluding any amount repaid, returned or discharged in respect of
any Restricted Payment) shall not exceed the sum of:
(A) 50% of the aggregate cumulative Consolidated Net Income of the
Guarantor or its predecessor (calculated to exclude net income of
Subsidiaries that are not Restricted Subsidiaries and to exclude the
after-tax effect of the net income of any Subsidiary to the extent
that such Subsidiary is restricted or prohibited from declaring
dividends) on a cumulative basis during the period beginning on the
first day following the last fiscal year that ended prior to the
date of this Indenture and ending on the last day of the Guarantor's
last fiscal quarter ending prior to the date of such proposed
Restricted Payment (or, if such aggregate cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) and 50% of the
aggregate cumulative dividends received by the Guarantor from any
Subsidiary or Special Subsidiary (other than a Restricted Subsidiary)
during the same period, plus
(B) the aggregate net proceeds received (including, without
limitation, Indebtedness or redemption or repurchase obligations
discharged, repaid or otherwise satisfied upon any conversion of
convertible Indebtedness or Redeemable Stock into Capital Stock of
the Guarantor or its predecessor) after the date of this Indenture
as capital contributions from the issuance of Capital Stock other
than Redeemable Stock;
provided, however, the failure to satisfy the conditions set forth in clauses
(II) or (III) (but not (I)) above shall not prevent the Guarantor or any
Restricted Subsidiary from (y) making Restricted Payments not to exceed
$5,000,000 in the aggregate (excluding any amount repaid, returned or
discharged in respect of any Restricted Payment) which amount shall be in
addition to any amounts paid under clause (III) above, or (z) making
Restricted Payments necessary for and directly related (as determined in good
faith by the Board of Directors and evidenced in a Board Resolution, which
determination shall be conclusive) to the development, transportation or
marketing of the oil and gas reserves of the Guarantor and its Restricted
Subsidiaries located in the Republic of Colombia, which amounts shall be in
addition to any amounts paid under clause (III) above, and that in each
case are not otherwise prohibited by the terms of this Indenture.
SECTION 3.8 Limitation on Transactions with Affiliates. The Guarantor
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of
assets, property or services) with any Affiliate (other than a wholly-owned
Subsidiary) of the Guarantor or any Subsidiary in an aggregate amount greater
than $1,000,000 unless (i) such transaction or series of related transactions
is on terms that are no less favorable to the Guarantor or such Subsidiary, as
the case may be, than those that would have been available in a comparable
arm's-length transaction with an unaffiliated third party and (ii) (A) with
respect to any transaction or series of related transactions involving
aggregate payments in excess of $1,000,000, but less than $10,000,000, the
Guarantor delivers an Officer's Certificate to the Trustee generally
describing such transaction and certifying that such transaction or
transactions complies with clause (i) above and (B) with respect to a
transaction or series of transactions involving aggregate payments equal
to or greater than $10,000,000, such transaction or transactions shall
have received the approval of a majority of the disinterested directors of
the Board of Directors (as evidenced by a
Board Resolution by such disinterested directors, a certified copy of which
has been delivered to the Trustee).
SECTION 3.9 Disposition of Proceeds of Asset Sales. (a) The
Guarantor will not, and will not permit any of its Subsidiaries (excluding the
Special Subsidiaries, Triton Air Holdings, Inc. and their respective
Subsidiaries) to, make any Asset Sale unless (i) such Asset Sale is for not
less than the fair market value of the assets or shares sold (as determined by
the Board of Directors and evidenced in a Board Resolution, which
determination shall be conclusive), (ii) at least 85% of the consideration (not
including the assumption of any Indebtedness by the purchaser in connection
with such Asset Sale) consists of cash and Cash Equivalents and the fair market
value (as determined in good faith by the Board of Directors and evidenced in a
Board Resolution, which determination shall be conclusive) of debt and equity
securities listed on any recognized securities exchange or traded in any
recognized over-the-counter market, except (x) in the case of an Asset Sale
involving oil and gas properties being sold to Persons other than Subsidiaries
by one or more Subsidiaries of the Guarantor or the Guarantor, the
consideration may consist solely or in part of oil and gas properties having a
fair market value at least equal to the fair market value of the assets
exchanged (as determined by the Board of Directors and evidenced by a Board
Resolution, which determination shall be conclusive), (y) in the case of an
Asset Sale involving Aero Services International, Inc., the consideration need
not be for cash and may consist in whole or in part of a promissory note not
to exceed $10,000,000, and (z) the Guarantor may enter into farm-out
transactions consistent with industry standards and otherwise in accordance
with the terms of this Indenture, including, but not limited to, Section 3.8,
and (iii) as otherwise set forth below.
(b) Within 12 months of any Asset Sale, the Guarantor or such
Subsidiary shall either (i) apply or cause the application of the Net Cash
Proceeds of such Asset Sale, or a portion thereof, to the permanent repayment
or prepayment of Senior Indebtedness of the Issuer or Senior Indebtedness of
the Guarantor or the 1997 Notes or (ii) invest, or enter into a legally
binding agreement to invest, such Net Cash Proceeds, or a portion thereof,
in properties and assets to replace the properties and assets that were the
subject of such Asset Sale or in properties and assets that (as determined by
the Board of Directors and evidenced in a Board Resolution, which
determination shall be conclusive) will be used in the business of the
Guarantor or its Subsidiaries, as the case may be, existing on the date of
this Indenture or in businesses the principal purposes of which are related to
the exploration, development, production or transportation of oil or gas,
provided, however, that in the event the Guarantor or any Subsidiary conveys,
transfers, leases or otherwise disposes of, directly or indirectly, any of its
Colombian Assets in a transaction or series of related transactions within any
consecutive 12-month period the effect of which is to reduce the Oil and Gas
Reserve Estimate of the Colombian Assets owned by the Guarantor and/or its
Subsidiaries by 50% or more (which value shall be determined by reference to
the most recently available Oil and Gas Reserve Estimate, or by any subsequent
estimate prepared by a nationally recognized petroleum engineering firm) or
such transaction reduces the Guarantor's direct and indirect net revenue
interest in either the Xxxxxxxx de las Atalayas or Tauramena contract areas of
the Xxxxxx Basin to less than 50% of such interest as of the date of this
Indenture, calculated to give effect to back-in interests of and equalization
and unitization arrangements with third parties, then the Guarantor or such
Subsidiary shall apply the Net Cash Proceeds resulting from such transaction
and every transaction thereafter with respect to the Colombian Assets to
either (A) permanently repay or prepay Senior Indebtedness of the Issuer or
Senior Indebtedness of the Guarantor or the 1997 Notes or (B) redeem the
Notes at a price equal to the Colombian Sale Redemption Price and otherwise
in accordance with the provisions of Article Twelve as if an optional
redemption were being made, in each case within 90 days of such transaction.
If any such legally binding agreement to invest any Net Cash Proceeds
referred to in clause (ii) of the preceding sentence is terminated, then the
Guarantor may invest such Net Cash Proceeds, prior to the
end of such 12-month period or within 90 days from such termination, whichever
is later, in the business of the Guarantor and its Subsidiaries as provided in
clauses (i) and (ii) above. The amount of such Net Cash Proceeds not applied,
used or invested as set forth above constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
$10,000,000 or more, the Guarantor shall so notify the Trustee in writing and
the Issuer shall offer to purchase from all Holders of the Notes (an "Asset
Sale Offer"), and shall purchase from Holders accepting such Asset Sale Offer
on the date fixed for such Asset Sale Offer (the "Asset Sale Offer Date"), the
maximum amount (expressed in integral multiples of aggregate principal amount
of $1,000) of Notes that may be purchased out of the Excess Proceeds, in
accordance with the procedures set forth in Section 3.9(e) (the "Asset Sale
Amount"), at an offer price (the "Asset Sale Offer Price") in cash in an
amount equal to 100% of the Accreted Amount thereof on any Asset Sale Offer
Date prior to December 15, 1996 or 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to any Asset Sale Offer Date on or after
December 15, 1996, in accordance with the procedures set forth in Section
3.9(e). To the extent that the aggregate amount of Notes tendered pursuant to
an Asset Sale Offer is less than the Excess Proceeds relating thereto (such
shortfall constituting a "Deficiency"), then the Guarantor may use such
Deficiency, or a portion thereof, for general corporate purposes. Upon
completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset
at zero.
(d) If the Issuer becomes obligated to make an Asset Sale Offer
pursuant to Section 3.9(c), Notes shall be purchased by the Issuer, at the
option of the Holder thereof, in whole or in part in integral multiples of
aggregate principal amount of $1,000, on a date that is not earlier than 30
days nor later than 60 days from the date the Asset Sale Offer Notice referred
to in Section 3.9(e) below is given to Holders, or such later date as may be
necessary for the Issuer to comply with requirements under the Exchange Act
(such date, or such later date, being the "Asset Sale Purchase Date"), subject
to proration in the event the Asset Sale Amount is less than the aggregate
Asset Sale Offer Price of all Notes tendered and to satisfaction by or on
behalf of the Holder of the requirements set forth in Section 3.9(f).
(e) Within 30 days after the date that the aggregate amount of
Excess Proceeds equals or exceeds $10,000,000, the Issuer shall give written
notice of the offer (an "Asset Sale Offer Notice") to the Trustee and to each
Holder of the Notes, at their addresses appearing in the Note register, by
first-class mail postage prepaid. The Trustee shall be under no obligation to
ascertain whether the Issuer is obligated to make an Asset Sale Offer. The
Asset Sale Offer Notice shall contain all instructions and materials necessary
to enable the Holders to tender Notes, shall include a form of Asset Sale
Purchase Notice (as defined in Section 3.9(f)) to be completed by the Holder
and shall state or provide:
(i) that the Holder has the right to require the Issuer to
repurchase, subject to proration, such Holder's Notes at the Asset
Sale Offer Price and the date by which a Holder must give an Asset
Sale Purchase Notice;
(ii) the Asset Sale Offer Price;
(iii) the Asset Sale Purchase Date;
(iv) that any Note not purchased will continue to accrue original
issue discount and interest, as applicable;
(v) that Notes to be purchased shall, on the Asset Sale Purchase
Date, become due and payable at the Asset Sale Offer Price and from
and after such date (unless the Issuer shall default in the payment
of the Asset Sale Offer Price) such Notes shall cease to accrue
original issue discount and interest, as applicable;
(vi) that the Notes to be purchased are subject to proration in
the event the Asset Sale Amount is less than the aggregate Asset
Sale Offer Price of all Notes tendered;
(vii) (A) the Guarantor's most recently filed Annual Report on
Form 10-K (including audited consolidated financial statements), the
Guarantor's most recent subsequently filed Quarterly Report on Form
10-Q, as applicable, and any Current Report on Form 8-K of the
Guarantor filed subsequent to such Quarterly Report (or, if the
Guarantor is not required to file any of the foregoing forms, the
comparable information required to be prepared by the Guarantor
pursuant to Section 4.3), (B) a description of any material
developments in the Guarantor's business since its latest annual or
quarterly report filed with the Trustee pursuant to Section 4.3 and,
if material, any appropriate pro forma financial information
(including, but not limited to, pro forma historical income, cash flow
and capitalization after giving effect to such Asset Sale) and (C)
such other information, if any, concerning the business of the
Guarantor which the Issuer in good faith believes will enable such
Holders to make an informed investment decision; and
(viii) the procedures a Holder must follow to exercise rights
under Section 3.9(c) and a brief description of those rights and the
procedures for withdrawing an Asset Sale Purchase Notice.
(f) A Holder may exercise its rights specified in Section 3.9(c)
upon (i) delivery to the Paying Agent specified in the Asset Sale Offer Notice
of a written notice (an "Asset Sale Purchase Notice") at any time prior to the
close of business on the Asset Sale Purchase Date, but not later than the
close of business on the second Business Day next preceding the Asset Sale
Purchase Date, stating (A) the certificate number of the Note that the Holder
will tender to be purchased and (B) the portion of the aggregate principal
amount of the Note that the Holder will tender to be purchased, which portion
must be $1,000 or an integral multiple thereof, and (ii) delivery of such Note
to such Paying Agent at such office prior to or on or after the Asset Sale
Purchase Date (together with all necessary endorsements), such delivery being
a condition to receipt by the Holder of the Asset Sale Offer Price therefor;
provided that Notes to be purchased are subject to proration in the event the
Asset Sale Amount is less than the aggregate Asset Sale Offer Price of all
Notes tendered for purchase. If a Holder has elected to deliver to the Issuer
for purchase a portion of a Note, and if the aggregate principal amount of
such portion is $1,000 or an integral multiple thereof, the Issuer shall,
subject to proration, purchase such portion from the Holder thereof pursuant
to this Section 3.9. Provisions of this Indenture that apply to the purchase
of all of a Note also apply to the purchase of a portion of such Note. Each
Paying Agent shall promptly notify the Issuer of the receipt by the former of
any and all Asset Sale Purchase Notices and any and all written notices of
withdrawal thereof.
(g) Upon receipt by the Paying Agent specified in the Asset Sale
Offer Notice of an Asset Sale Purchase Notice, the Holder of the Note in
respect of which such Asset Sale Purchase Notice was given shall (unless such
Asset Sale Purchase Notice is withdrawn pursuant to Section 3.9(k)) thereafter
be entitled to receive solely the Asset Sale Offer Price with respect to such
Note. Such Asset Sale Offer Price shall be paid to such Holder promptly
following the later of the Business Day following the Asset Sale Purchase Date
(provided the conditions in Section 3.9(f) have been satisfied) and the time
of delivery of such Note to the relevant Paying Agent at the office of such
Paying Agent by the Holder thereof in the manner required by Section 3.9(f).
(h) On or prior to 11:00 a.m., New York City time, on the Asset
Sale Purchase Date, the Issuer or the Guarantor shall deposit with the Paying
Agent specified in the Asset Sale Offer Notice (or if the Issuer is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 6.5)
an amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the Asset Sale Purchase Date) sufficient to pay the
aggregate Asset Sale Offered Price of all the Notes or portions thereof which
are to be purchased on that date.
(i) Any Note that is to be purchased only in part shall be
surrendered to the Paying Agent specified in the Asset Sale Offer Notice at
the office of such Paying Agent (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the
Issuer shall execute, the Guarantor shall execute the Guarantee endorsed
on, and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, one or more new Notes of any authorized
denomination as requested by such Holder in an aggregate principal amount
equal to, and in exchange for, the portion of the principal amount of the
Note so surrendered that is not purchased.
(j) The Issuer and the Guarantor shall comply with any applicable
tender offer rules then in effect, including Section 14(e) of the Exchange Act
and Rule 14e-1 promulgated thereunder, in connection with an Asset Sale Offer.
In the event of any conflict between such tender offer rules and the
provisions set forth in this Section 3.9, such tender offer rules shall control.
(k) An Asset Sale Purchase Notice may be withdrawn before or
after delivery by the Holder to the relevant Paying Agent at the office of
such Paying Agent of the Note to which such Asset Sale Purchase Notice relates,
by means of a written notice of withdrawal (by facsimile transmission or letter)
received by such Paying Agent at such office not later than three Business
Days prior to the Asset Sale Purchase Date, specifying, as applicable:
(i) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted;
(ii) the aggregate principal amount of the Notes initially
outstanding hereunder with respect to which such notice of withdrawal
is being submitted; and
(iii) the aggregate principal amount initially outstanding
hereunder of the Note that remains subject to the original Asset Sale
Purchase Notice and that has been or will be delivered for purchase
by the Issuer.
A written notice of withdrawal may be in the form set forth in the preceding
paragraph. Each Paying Agent will promptly return to the prospective Holders
thereof any Notes with respect to which an Asset Sale Purchase Notice has been
withdrawn in compliance with this Indenture.
(l) The Guarantor will not, and will not permit any Subsidiary
to, create or permit to exist or become effective any restriction (other than
restrictions existing under (i) Indebtedness as in effect on the date of this
Indenture or (ii) any Senior Indebtedness of the Issuer existing on the date
of this Indenture or thereafter or any Senior Indebtedness of the Guarantor
existing on the date of this Indenture or thereafter) that would materially
impair the ability of the Issuer to make an Asset Sale Offer to purchase the
Notes upon an Asset Sale or, if such Asset Sale Offer is made, to pay for the
Notes tendered for purchase.
SECTION 3.10 Limitation on Liens. The Guarantor will not, and
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien of any kind upon any of their respective assets or properties
now owned or acquired after the date of this Indenture, or any income or
profits therefrom, securing any Indebtedness of the Guarantor that is
expressly by its terms subordinate or junior in right of payment to any other
Indebtedness of the Guarantor, unless the Guarantees are equally and ratably
secured, provided, however, that if such Lien securing such junior or
subordinated Indebtedness ceases to exist, such equal and ratable Lien for the
benefit of the Holders of the Guarantees shall cease to exist; provided,
further, that the Lien securing such subordinated or junior Indebtedness shall
be subordinated and junior to the Lien securing the Guarantees with the same
relative priority as such subordinated or junior Indebtedness shall have with
respect to the Guarantees.
For purposes of this Indenture, the Guarantees will be considered
equally and ratably secured with any other Lien if the Lien securing the
Guarantees is of at least equal priority and covers the same property or
assets as such other Lien.
SECTION 3.11 Limitation Upon Other Senior Subordinated
Indebtedness. Neither the Issuer nor the Guarantor will incur, create,
assume, guarantee or in any other manner become directly or indirectly liable
with respect to or be responsible for, or permit to remain outstanding, any
Indebtedness (other than the Notes, the Guarantees, the 1997 Notes or the 1997
Guarantees) that is subordinate or junior in right of payment to any Senior
Indebtedness of the Issuer or Senior Indebtedness of the Guarantor, unless
such Indebtedness is also pari passu with, or subordinate in right of payment
to, the Notes and the Guarantees pursuant to subordination provisions
substantially similar to those set forth in Articles Thirteen and Fourteen.
SECTION 3.12 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries. The Guarantor will not, and will not
permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of the Guarantor or any Subsidiary to (i) pay dividends or make any
other distributions on Capital Stock of any Subsidiary, (ii) pay any
Indebtedness owed to the Guarantor or any Subsidiary, (iii) make any Investment
in the Guarantor or any Subsidiary, or (iv) transfer any of its property or
assets to the Guarantor or any Subsidiary, except
(A) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date of this Indenture,
(B) any encumbrance or restriction with respect to a Person that
was not a Subsidiary of the Issuer on the date of this Indenture, in
existence at the time such Person becomes a Subsidiary of the
Guarantor or created on the date it becomes a Subsidiary and not
incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary,
(C) any encumbrance or restriction on the ability of any
Subsidiary to transfer any of its real property (and any improvements
thereon) acquired after the date of this Indenture, to the Guarantor
or any Subsidiary that is required by a lender to, or purchaser of any
Indebtedness of, such Subsidiary in connection with a financing of
the acquisition of such property (and/or construction of such
improvements) by such Subsidiary permitted under this Indenture,
(D) any encumbrance or restriction pursuant to any agreement that
extends, refinances, renews or replaces any agreement containing any
of the restrictions described in the foregoing clauses (A) through
(C), provided, however, that the terms and conditions of any such
restrictions are not materially less favorable to the Holders of the
Notes than those under or pursuant to the agreement evidencing the
Indebtedness so extended, refinanced, renewed or replaced,
(E) encumbrances or restrictions arising under law,
(F) any encumbrance or restriction arising under customary
non-assignment provisions in installment purchase contracts, and
(G) in the case of clause (iv) above, restrictions contained in
security agreements permitted by this Indenture securing Indebtedness
permitted by this Indenture to the extent such restrictions restrict
the transfer of property subject to such security agreements or any
renewals, extensions, substitutions, refinancings or replacements of
such Indebtedness, provided, however, that the terms and conditions
of any such restrictions shall not be materially less favorable to
the Holders of the Notes than those under or pursuant to the
agreement evidencing the Indebtedness so renewed, extended,
substituted refinanced, or replaced.
SECTION 3.13 Limitation on Guaranties. (a) The Guarantor will
not permit any Subsidiary (other than the Issuer), directly or indirectly, to
assume, guarantee or in any other manner become liable with respect to the
payment of any Senior Indebtedness of the Issuer or Senior Indebtedness of the
Guarantor, unless (i) such Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for the guarantee of the
payment of the Notes by such Subsidiary, which guarantee shall include
subordination provisions substantially similar to those set forth in Article
Thirteen to the same extent as the Notes are subordinated to Senior
Indebtedness of the Issuer; and (ii) such Subsidiary waives and will not in
any manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Guarantor or any other Subsidiary as a result of such payment by such
Subsidiary under its guarantee. Notwithstanding the foregoing, any such
guarantee by a Subsidiary of the Notes shall provide by its terms that it
shall be automatically and unconditionally released and discharged upon the
release or discharge of such guarantee of payment of such Senior Indebtedness
of the Issuer or such Senior Indebtedness of the Guarantor.
(b) The Guarantor will not permit any Subsidiary (other than the
Issuer), directly or indirectly, to assume, guarantee or in any other manner
become liable with respect to the payment of any Indebtedness which is pari
passu with or subordinated to the Notes, unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for
a guarantee of the payment of the Notes by such Subsidiary; provided, however,
in the case of such Subsidiary's assumption, guarantee or other liability with
respect to Indebtedness subordinated to the Notes, such guarantee, assumption
or other liability shall be subordinated to such Subsidiary's guarantee of the
Notes to the same extent as such Indebtedness is subordinated to the Notes;
and provided, further, that this Section 3.13(b) shall not be applicable to any
guarantee, assumption or other liability of any Subsidiary of the Guarantor in
existence on the date of this Indenture or that (i) existed at the time such
Person became a Subsidiary of the Guarantor or its predecessor and (ii) was
not incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary of the Guarantor or its predecessor. Notwithstanding the
foregoing, any such guarantee of the Notes by a Subsidiary shall provide by its
terms that it shall be automatically and unconditionally released and discharged
upon the release or discharge of such guarantee of such Indebtedness that is
pari passu with or subordinated to the Notes.
SECTION 3.14 Purchase of Notes Upon Change in Control. (a) If
there shall have occurred a Change in Control, Notes shall be purchased by the
Issuer, at the option of the Holder thereof, in whole or in part in integral
multiples of aggregate principal amount of $1,000, on a date that is not
earlier than 45 days nor later than 60 days from the date the Change in
Control Notice referred to in paragraph (c) below is given to Holders or such
later date as may be necessary for the Issuer and the Guarantor to comply with
requirements under the Exchange Act (such date, or such later date, being the
"Change in Control Purchase Date"), at a purchase price in cash (the "Change
in Control Purchase Price") equal to 101% of the Accreted Amount thereof on
any Change in Control Purchase Date prior to December 15, 1996 or 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to any
Change in Control Purchase Date on or after December 15, 1996, subject to
satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.14(c).
(b) Within 30 days following a Change in Control and prior to the
mailing of the Change in Control Notice to Holders provided for in paragraph
(c) below, the Issuer and the Guarantor covenant to either (1) repay in full
all Senior Indebtedness of the Guarantor and Senior Indebtedness of the Issuer
the terms of which require such payment in connection with such event or (2)
obtain the requisite consent from holders of such Senior Indebtedness not
repaid in order to permit the repurchase of the Notes as provided for in this
Section 3.14. The Issuer and the Guarantor shall first comply with this
subsection (b) before the Issuer shall be required to repurchase the Notes
pursuant to this Section 3.14, and any failure to comply with this subsection
(b) shall constitute a Default in the performance of a covenant for purposes
of Section 5.1(b).
(c) Within 30 days after the occurrence of a Change in Control,
the Issuer shall give written notice of such Change in Control (a "Change in
Control Notice") and of its offer (the "Change in Control Offer") to purchase
Notes as specified herein to the Trustee and to each Holder of the Notes at
its address appearing on the Note register, by first-class mail, postage
prepaid. The Trustee shall be under no obligation to ascertain whether the
Issuer is obligated to give a Change in Control Notice. The Change in Control
Notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes, shall include a form of written notice to be completed
by Holders electing to have Notes purchased under Section 3.14(a) (a "Change in
Control Purchase Notice") and shall state or include:
(i) that a Change in Control has occurred and the circumstances
and events causing the Change in Control and the date such Change in
Control is deemed to have occurred for purposes of this Section
3.14(c);
(ii) the date by which a Holder must give a Change in Control
Purchase Notice;
(iii) the Change in Control Purchase Price;
(iv) the Change in Control Purchase Date;
(v) that any Note not purchased will continue to accrue original
issue discount and interest, as applicable;
(vi) that Notes to be purchased shall, on the Change in Control
Purchase Date, become due and payable at the Change in Control
Purchase Price and from and after such date (unless the Issuer shall
default in the payment of the Change in Control Purchase Price) such
Notes shall cease to accrue original issue discount and interest,
as applicable;
(vii) (A) the Guarantor's most recently filed Annual Report on
Form 10-K (including audited consolidated financial statements),
the Guarantor's most recent subsequently filed Quarterly Report on
Form 10-Q, as applicable, and any Current Report on Form 8-K of the
Guarantor filed subsequent to such Quarterly Report (or, if the
Guarantor is not required to file any of the foregoing forms, the
comparable information required to be prepared by the Guarantor
pursuant to Section 4.3), (B) a description of any material
developments in the Guarantor's business since its latest annual or
quarterly report filed with the Trustee pursuant to Section 4.3 and,
if material, any appropriate pro forma financial information
(including but not limited to pro forma historical income, cash flow
and capitalization after giving effect to such Change in Control)
and (C) such other information, if any, concerning the business of the
Guarantor which the Guarantor in good faith believes will enable such
Holders to make an informed investment decision; and
(viii) the procedures a holder must follow to exercise rights
under this Section 3.14(c) and a brief description of those rights
and the procedures for withdrawing a Change in Control Purchase
Notice.
(d) Holders electing to have Notes purchased under Section
3.14(a) will be required to deliver a Change in Control Purchase Notice and
surrender such Notes to the Paying Agent specified in the Change of Control
Notice at the address specified in the notice by the close of business at
least five Business Days prior to the Change in Control Purchase Date.
Holders will be entitled to withdraw their election if such Paying Agent
receives, at the close of business not later than three Business Days prior to
the Change in Control Purchase Date, a telegram, telex, facsimile transmission
or letter setting forth (i) the name of the Holder, (ii) the certificate
number of the Note in respect of which such notice of withdrawal is being
submitted, (iii) the aggregate principal amount of the Notes delivered for
purchase by the Holder as to which its election is to be withdrawn, and (iv)
a statement that such Holder is withdrawing its election to have such Notes
purchased. Each Paying Agent will promptly return to the prospective Holders
thereof any Notes with respect to which a Change in Control Purchase Notice
has been withdrawn in compliance herewith.
(e) Upon receipt by the Paying Agent specified in the Change of
Control Notice of a Change in Control Purchase Notice, the Holder of the Note
in respect of which such Change in Control Purchase Notice was given shall
(unless such Change in Control Purchase Notice is withdrawn pursuant to
Section 3.14(d)) thereafter be entitled to receive solely the Change in
Control Purchase Price with respect to such Note. Such Change in Control
Purchase Price shall be paid to such Holder promptly following the later of
the Business Day following the Change in Control Purchase Date (provided the
conditions in Section 3.14(d) have been satisfied) and the time of delivery
of such Note to the relevant Paying Agent at the office of such Paying Agent
by the Holder thereof in the manner required by Section 3.14(c).
(f) On or prior to 11:00 a.m., New York City time, on the Change
in Control Purchase Date, the Issuer shall deposit with the Paying Agent
specified in the Change of Control Notice (or if the Issuer is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.5) an
amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the Change in Control Purchase Date) sufficient to
pay the Change in Control Purchase Price of all the Notes or portions thereof
which are to be purchased on that date.
(g) Any Note that is to be purchased only in part shall be
surrendered to the Paying Agent specified in the Change of Control Notice at
the office of such Paying Agent (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Issuer
shall execute, the Guarantor shall execute the Guarantee endorsed on, and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge, one or more new Notes of any authorized denomination as
requested by such Holder in the aggregate principal amount of the Note so
surrendered that is not purchased.
(h) The Issuer and the Guarantor shall comply with any applicable
tender offer rules then in effect, including Section 14(e) of the Exchange Act
and Rule 14e-1 promulgated thereunder, in connection with a Change in Control
Offer. In the event of any conflict between such tender offer rules and the
provisions set forth in this Section 3.14, such tender offer rules shall
control.
SECTION 3.15 Payment of Taxes and Other Claims. The Guarantor
will pay or discharge or cause to be paid or discharged before the same shall
become delinquent, (i) all material taxes, assessments and governmental
charges levied or imposed upon the Guarantor or any Subsidiary of the Guarantor
or upon the income, profits or property of the Guarantor or any of its
Subsidiaries, and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Guarantor or any of its Subsidiaries; provided, however, that the Guarantor
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claims the amount, applicability or
validity of which is being contested in good faith by appropriate
proceedings and for which adequate provision has been made.
SECTION 3.16 Commission Reports and Reports to Holders of Notes.
Within 15 days after the Guarantor files with the Commission copies of its
annual reports and other information, documents and reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which it is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, the Guarantor shall file
the same with the Trustee. So long as the Notes remain outstanding, the
Guarantor shall cause quarterly reports (containing unaudited financial
statements) for the first three quarters of each fiscal year and annual
reports (containing audited financial statements and an opinion thereon by
the Guarantor's independent certified public accountants) which it would be
required to file under Section 13 of the Exchange Act if it had a class of
securities listed on a national securities exchange to be mailed to the
Holders of Notes at their addresses appearing in the register of Notes
maintained by the registrar within 15 days of when such report would have
been required to be filed under Section 13 of the Exchange Act. The
Guarantor also shall comply with the other provisions of Section 314(a) of
the Trust Indenture Act of 1939.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER, THE GUARANTOR AND THE TRUSTEE
SECTION 4.1 Issuer and Guarantor to Furnish Trustee Information
as to Names and Addresses of Securityholders. The Issuer and the Guarantor
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 or the
Guarantor of any such request,
provided that if and so long as the Trustee shall be the registrar
for such series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to
it as provided in Section 4.1, and (ii) received by it in the capacity of
registrar or paying agent for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to
the Trustee reasonable proof that each such applicant has owned a Security for
a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of a particular series (in which case the applicants must
all hold Securities of such series) or with Holders of all Securities with
respect to their rights under this Indenture or under such Securities and such
application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or of all Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the Issuer, the
Guarantor nor the Trustee nor any agent of the Issuer, the Guarantor 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 and Guarantor. The Issuer and
the Guarantor each covenants:
(a) to file with the Trustee, within 15 days after the Issuer or
the Guarantor, as the case may be, 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 or the Guarantor may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Issuer or the Guarantor
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 or the Guarantor, or both, 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
or the Guarantor 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 or the Guarantor's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after
January 1 of each year commencing with the year 1994, the Trustee shall
transmit by mail to the Holders of Securities, as provided in subsection (c)
of this Section 4.4, a brief report dated as of such January 1 with respect
to any of the following events which may have occurred within the last 12
months (but if no such event has occurred within such period, no report
need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of, or any material change to, a relationship
specified in paragraph (1) through (10) of Section 310(b) of the
Trust Indenture Act of 1939;
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the
date of such report and for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities of any
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more than 1/2 of 1% of the principal amount of all Securities
Outstanding on the date of such report;
(iv) the amount, interest rate, if any, and maturity date of all
other indebtedness owing by the Issuer or the Guarantor (or by any
other obligor on the Securities) to the Trustee in its individual
capacity on the date of such report, with a brief description of any
property held as collateral security therefor, except any
indebtedness based upon a creditor relationship arising in any manner
described in Section 311(b) of the Trust Indenture Act of 1939;
(v) any change to the property and funds, if any, physically in
the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has
not previously reported; and
(vii) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be
withheldby it in accordance with the provisions of Article Five.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section 4.4, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to
the provisions of subsection (a) of this Section 4.4 (or if no such report has
yet been so transmitted, since the date of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge prior to that
of the Securities of such series on property or funds held or collected by it
as Trustee and which it has not previously reported pursuant to this
subsection (b), except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of all Securities Outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Securities, as the names and
addresses of such Holders appear upon the registry books of the
Issuer; and
(ii) to all other Persons to whom such reports are
required to be transmitted pursuant to Section 313(c) of the
Trust Indenture Act of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and the Guarantor
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 the Notes, means any one of the following events
(whatever the reason for such Event of Default and whether or not it shall be
occasioned or prohibited by the provisions of Article Thirteen or otherwise):
(a) default in the payment of any installment of interest on the
Notes as and when the same becomes due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of the principal of the Notes,
Redemption Price, Change in Control Purchase Price, Colombian Sale
Redemption Price or Asset Sale Offer Price when the same becomes due
and payable as provided in this Indenture, whether at its Stated
Maturity, upon redemption, upon declaration of acceleration, when due
for purchase by the Issuer or otherwise, whether or not such payment
shall be prohibited by this Indenture; or
(c) default in the performance, or breach, of any covenant or
agreement of the Issuer or the Guarantor under this Indenture (other
than a default in the performance, or breach, of a covenant or
agreement that is specifically dealt with elsewhere in this Section
5.1), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the Issuer and the Guarantor by the Trustee or to the Issuer, the
Guarantor and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Notes a written notice specifying
such default or breach and stating that such notice is a "Notice
of Default"; or
(d) (i) an event of default shall have occurred under any
mortgage, bond, indenture, loan agreement or other document
evidencing any issue of Indebtedness of the Issuer, the Guarantor or
any other Material Subsidiary (except for any Special Subsidiary less
than 30% of the common equity of which is directly or indirectly
owned by the Issuer as of the date of this Indenture) for money
borrowed, which issue has an aggregate outstanding principal amount
of not less than $10,000,000, and such default shall result in such
Indebtedness becoming, whether by declaration or otherwise, due and
payable prior to the date on which it would otherwise become due and
payable or (ii) a default in any payment when due at final maturity
of any such Indebtedness; or
(e) final judgments or orders rendered against the Issuer, the
Guarantor or any other Material Subsidiary (except for any Special
Subsidiary less than 30% of the common equity of which is directly or
indirectly owned by the Issuer as of the date of this Indenture)
which require the payment in money, either individually or in an
aggregate amount, of more than $10,000,000 and such judgment or order
shall remain unsatisfied or unstayed for 60 consecutive days after
such judgement or order becomes final and nonappealable; or
(f) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Issuer,
the Guarantor or any other Material Subsidiary (except for any
Special Subsidiary less than 30% of the common equity of which is
directly or indirectly owned by the Issuer as of the date of this
Indenture) in an involuntary case or proceeding under, in the case
of the Issuer or any other Material Subsidiary, the Bankruptcy Code
or any other federal or state bankruptcy, insolvency, reorganization
or similar law, or, in the case of the Guarantor, any applicable
bankruptcy, insolvency, reorganization or similar law of the Cayman
Islands or (ii) adjudging the Issuer, the Guarantor or any other such
Material Subsidiary a bankrupt or insolvent, or seeking reorganization,
arrangement,adjustment or composition of or in respect of the
Issuer, the Guarantor or any other such Material Subsidiary under, in
the case ofthe Issuer or any other Material Subsidiary, the Bankruptcy
Code or any other applicable federal or state law, or, in the case of
the Guarantor, any applicable bankruptcy, insolvency or other similar
law of the Cayman Islands; or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer, the Guarantor or any other such Material
Subsidiary or of any substantial part of any of their
properties, or Ordering the winding up or liquidation of any of their
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(g) the institution by the Issuer, the Guarantor or any other
Material Subsidiary (except for any Special Subsidiary less than
30% of the common equity of which is directly or indirectly owned by the
Issuer as of the date of this Indenture) of a voluntary case or proceeding
under, in the case of the Issuer or any other Material Subsidiary, the
Bankruptcy Code or any other applicable federal or state law, or, in the case
of the Guarantor, any applicable bankruptcy, insolvency or other similar law
of the Cayman Islands, or any other case or proceedings to be adjudicated a
bankrupt or insolvent, or the consent by the Issuer, the Guarantor or any
other such Material Subsidiary to the entry of a decree or order for relief in
respect of the Issuer, the Guarantor or any other such MaterialSubsidiary in
any involuntary case or proceeding under, in the case ofthe Issuer or any
other Material Subsidiary, the Bankruptcy Code or any other applicable federal
or state law, or, in the case of the Guarantor, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, or to the institution
of bankruptcy or insolvency proceedings against the Issuer, the Guarantor or
any such other Material Subsidiary, or the filing by the Issuer, the Guarantor
or any such other Material Subsidiary of a petition or answer or consent
seeking reorganization or relief under, in the case of the Issuer or any other
Material Subsidiary, the Bankruptcy Code or any other applicable federal or
state law, or, in the case of the Guarantor, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, or the consent by it to
the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer, the Guarantor or any
other such Material Subsidiary or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due or taking of corporate action by the Issuer, the Guarantor or any
other such Material Subsidiary in furtherance of any such action; or
(h) default by the Issuer or the Guarantor in the performance or
breach of the terms of Article Nine.
Each of the Issuer and the Guarantor shall deliver to the
Trustee, immediately after it becomes aware of the occurrence thereof, written
notice of (i) any Event of Default under this Section 5.1, or (ii) any event
which with the giving of notice or the lapse of time or both would become an
Event of Default under clause (c) or clause (d), its status and what action the
Issuer or the Guarantor is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission. If an Event of
Default with respect to the Notes (other than an Event of Default specified in
Section 5.1(f) or 5.1(g)) occurs and is continuing, the Trustee or the Holders
of at least a 25% in aggregate principal amount of the Notes then outstanding,
by written notice to the Issuer and the Guarantor (and to the Trustee if such
notice is given by Holders), may, and the Trustee at the request of such
Holders shall, declare the Notes and the accrued interest thereon (or, prior
to December 15, 1996, the Accreted Amount) to be immediately due and payable,
as specified below. Upon a declaration of acceleration, such amount shall be
due and payable immediately after receipt by the Issuer and the Guarantor of
such written notice given hereunder. If an Event of Default specified in
Section 5.1(f) or 5.1(g) occurs and is continuing, then the Notes and the
accrued interest thereon (or, prior to December 15, 1996, the Accreted Amount)
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. At any
time after such declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Notes outstanding, by written notice to the
Issuer, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee under Section 6.6
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(ii) the amounts payable in respect of any Notes which have
become due otherwise than by such declaration of acceleration and
overdue interest thereon (to the extent of such overdue interest at
the rate borne by the Notes); and
(b) the rescission would not conflict with any judgment or
decree and if all existing Events of Default, other than the non-payment of
the principal amount or Accreted Amount of the Notes which have become due
solely by such declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent Default or impair
any right consequent thereon provided in Section 5.13.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Issuer covenants that if an Event of Default described in
Section 5.1(a) or 5.1(b) occurs and is continuing, the Issuer will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Notes,
the whole amount then due and payable on such Notes, with interest upon the
overdue amounts and, to the extent that payment of such interest shall be
legally enforceable, upon overdue interest, at the rate borne by the Notes;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer, the Guarantor or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuer, the Guarantor or any
other obligor upon the Notes, wherever situated.
If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or the Notes or in aid of the exercise of any
power granted herein or therein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer, the Guarantor or any other obligor upon the
Notes or the property of the Issuer, the Guarantor or such other obligor or
their creditors, the Trustee (irrespective of whether the principal amount of
the Notes, premium, if any, accreted original issue discount, Redemption
Price, Change in Control Purchase Price, Colombian Sale Redemption Price, Asset
Sale Offer Price, interest, if any, or any other payment required to be made
under this Indenture in connection with the Notes 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 on the Issuer or the Guarantor for the
payment of any such amount) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Notes, of the principal
amount of the Notes, premium, if any, accreted original issue
discount, Redemption Price, Change in Control Purchase Price,
Colombian Sale Redemption Price, Asset Sale Offer Price, interest, if
any, or any other payment required to be made under this Indenture and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders of
Notes allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder of Notes to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Notes, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Note any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Note in any such
proceeding.
SECTION 5.5 Trustee May Enforce Claims without Possession of
Notes. All rights of action and claims under this Indenture or any of the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery or judgment, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be
for the ratable benefit of each and every Holder of a Note in respect of which
such judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money collected
by the Trustee pursuant to this Article shall be applied in the following
order, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon
the Notes for the principal amount of the Notes, premium, if any,
accreted original issue discount, Redemption Price, Change in
Control Purchase Price, Colombian Sale Redemption Price, Asset Sale
Offer Price, interest, if any, or any other payment required to
be made under this Indenture, as the case may be, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Notes;
THIRD: The balance, if any, to the Issuer.
SECTION 5.7 Limitations on Suits. No Holder of any Notes shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal
amount of the Notes at the time outstanding shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the outstanding Notes;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Note to affect, disturb or prejudice the
rights of any other Holders of Notes, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Payment.
Notwithstanding any other provision in this Indenture, the Holder of any Note
shall have the right, which is absolute and unconditional, to receive payment
of the principal amount, premium, if any, accreted original issue discount,
Redemption Price, Change in Control Purchase Price, Colombian Sale Redemption
Price, Asset Sale Offer Price, interest, if any, or any other payment required
to be made under this Indenture with respect to such Note, on the respective
due dates therefor specified in such Note (or, in the case of redemption, on
the Redemption Date or, in the case of repayment at the option of such Holder
as provided in or pursuant to this Indenture, on the date such repayment is
due) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired or affected without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee
or any Holder of a Note has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Issuer, the Guarantor, the
Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and each such
Holder shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as
otherwise provided in Section 2.9, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Note is intended to
be exclusive of any other right or remedy, and every right and remedy to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or
to any Holder of a Note may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holder, as the case may be.
SECTION 5.12 Control by Holders of Notes. The Holders of a
majority in aggregate principal amount of the outstanding Notes 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, provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Notes, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of the outstanding Notes, by
notice to the Trustee, on behalf of the Holders of all the Notes may waive any
past Default hereunder with respect to such Notes and its consequences, except
(a) an Event of Default described in Section 5.1(a) or 5.1(b),
or
(b) a Default in respect of a covenant or provision that under
Section 8.2 cannot be modified or amended without the consent of the
Holder of each outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer and
the Guarantor each covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer and the Guarantor each
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Notice of Defaults. If a Default or an Event of
Default occurs and is continuing with respect to the Notes and if it is known
to the Trustee, the Trustee shall mail to each Holder of Notes notice of the
Default or Event of Default within 30 days after it occurs and is known to
have occurred by the Trustee, unless such Default or Event of Default has
been cured.
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
madein good faith by a Responsible Officer or Responsible Officers of the
Trustee,unless it shall be proved that the Trustee was negligent in
ascertaining thepertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Article Five relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture.
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 or the
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate or Issuer Order (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and
any advice of such counsel promptly confirmed in writing shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance thereon
in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Article Five), unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a condition
to proceeding; the reasonable expenses of every such investigation shall be paid
by the Issuer or the Guarantor or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer or the Guarantor 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 the Guarantor 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 or the Guarantor, 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, the Guarantor 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 the Guarantor and receive, collect, hold and retain collections
from the Issuer and the Guarantor 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 Guarantor 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 and the Guarantor covenant and agree to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Issuer, the
Guarantor 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
and the Guarantor covenant and agree to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Issuer and the Guarantor also covenant to indemnify the Trustee
and each predecessor Trustee for, and to hold it harmless against, any and
all loss, liability, damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee), incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The obligations of
the Issuer and the Guarantor 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 of the Issuer and Senior Indebtedness of the
Guarantor pursuant to Article Thirteen and Article Fourteen, respectively.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities,
and the Securities are hereby subordinated to such senior claim. When the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with Article Five hereof,
the expenses (including the reasonable fees and expenses of its counsel) and
the compensation for the service in connection therewith are intended to
constitute expenses of administration under any bankruptcy law. The
provisions of this Section 6.6 shall survive the resignation or removal of
the Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests.
This Indenture shall always have a Trustee who satisfies the requirements of
Section 310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have
a combined capital and surplus of at least $25,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act of 1939 regarding
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series. The Trustee for each series of
Securities hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia having a combined capital and surplus of at least
$25,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by federal, state or
District of Columbia authority, or a corporation or other Person permitted to
act as trustee by the Commission. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. No obligor upon the Securities or any Affiliate of
such obligor shall serve as trustee upon the Securities. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 6.9, the Trustee shall resign immediately in the manner and with
the effect specified in Section 6.10.
A different Trustee may be appointed by the Issuer for 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, the Guarantor 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 the Guarantor 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 the
Guarantor 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
and the Guarantor 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 the Guarantor 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, the Guarantor 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 and the Guarantor shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time
of such acceptance such successor trustee shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice thereof to the
Holders of Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Securities of
any series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act of 1939, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to the
extent indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent
(the "Authenticating Agent") which shall be authorized to act on behalf of
the Trustee to authenticate Securities, including Securities issued upon
exchange, registration of transfer, partial redemption or pursuant to Section
2.9. Securities of each such series authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent for such series
and a Certificate of Authentication executed on behalf of the Trustee by
such Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
of America or of any state or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $25,000,000 (determined as provided in Section 6.9 with
respect to the Trustee) and subject to supervision or examination by federal
or state authority.
Any corporation into which any Authenticating Agent may be merged
or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to
the Issuer. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect
to one or more series of Securities, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Issuer
shall provide notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent
for such series from time to time reasonable compensation. The Authenticating
Agent for the Securities of any series shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee, the Issuer and the Guarantor, 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
Guarantor, the Trustee and any agent of the Issuer, the Guarantor 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 Guarantor nor the
Trustee nor any agent of the Issuer, the Guarantor or the Trustee shall be
affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer and Guarantor Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer, by the Guarantor, by any Affiliate of the Issuer or the
Guarantor or by any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such 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 the Guarantor or any other obligor upon the Securities or any
Affiliate of the Issuer or the Guarantor 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 and the Guarantor
shall furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer or the Guarantor 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 Guarantor, the Trustee and the Holders of all the Securities
affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Article Five of the
Indenture, (ii) consent to any supplemental indenture in accordance with Section
8.2 of the Indenture or (iii) waive compliance with any term, condition or
provision of any covenant hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and any such Persons, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further
effect.
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), the Guarantor, when authorized by a
Board Resolution 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
the Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the
Issuer or the Guarantor pursuant to Article Nine;
(c) to add to the covenants of the Issuer or of the Guarantor such
further covenants, restrictions, conditions or provisions as the
Issuer, the Guarantor 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
or the form of Guarantees 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; 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
or the Guarantor solely in respect of, or add new covenants or Events
of Default of the Issuer or the Guarantor 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 and
the Guarantor 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), the Guarantor, when authorized by a Board
Resolution, and the Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental
indenture shall (a) extend the stated final maturity of the principal of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest, if any, thereon (or, in the case of an
Original Issue Discount Security, reduce the rate of accretion of original
issue discount thereon), or reduce or alter the method of computation of any
amount payable on redemption, repayment or purchase by the Issuer thereof
(or the time at which any such redemption, repayment or purchase may be made),
or make the principal thereof (including any amount in respect of original
issue discount), or interest, if any, thereon payable in any coin or currency
other than that provided in the Securities or in accordance with the terms of
the Securities, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy in each case
pursuant to Article Five, or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment or purchase at the option of the
Securityholder or change in any manner adverse to the interests of the
Holders of any Securities the terms and conditions of the obligations of the
Guarantor in respect of the guarantee of the due and punctual payment of the
principal thereof (and premium, if any) and interest, if any, thereon, 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, the Issuer and the Guarantor 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 and the Guarantor, accompanied by a
copy of a resolution of the Boards of Directors of the Issuer and the
Guarantor (which resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by
the secretary or an assistant secretary of the Issuer and the Guarantor,
respectively, 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 and the Guarantor 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, the Guarantor 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, the Guarantor 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, the Guarantor or the
Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Issuer and the Guarantor, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Issuer, the Guarantees thereon may be
executed by the Guarantor 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 or Guarantor May Consolidate, etc., on Certain
Terms. Subject to the provisions of Section 9.2, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of
the Issuer or the Guarantor with or into any other Person or Persons (whether
or not affiliated with the Issuer or the Guarantor), or successive
consolidations or mergers in which the Issuer or the Guarantor or their
respective successor or successors shall be a party or parties, or shall
prevent any sale, lease, exchange or other disposition of all or substantially
all the property and assets of the Issuer or the Guarantor to any other Person
(whether or not affiliated with the Issuer or the Guarantor) authorized to
acquire and operate the same; provided, however, the Issuer and the Guarantor
each hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a) the
Person (if other than the Issuer or the Guarantor) 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, in the case of the Issuer, a
corporation or partnership organized under the laws of the United States of
America, any state thereof or the District of Columbia, and, in the case of
the Guarantor, 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; (b) the due and punctual
payment of the principal of and interest, if any, on all the Notes, 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
or the due and punctual performance of the Guarantees and the due and punctual
performance and observance of the covenants and conditions of this Indenture
to be performed by the Guarantor, as the case may be, 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
or the Guarantor) 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; (c) immediately after giving effect to such consolidation, merger,
sale, lease, 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; (d) in the case of the
Guarantor, the Person (whether the Guarantor 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, would have a pro forma
Consolidated Net Worth after giving effect to the transaction at least equal
to the Consolidated Net Worth of the Guarantor prior to the transaction; and
(e) except in the case of a transaction involving a Special Subsidiary, the
Person (whether the Guarantor 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, could incur an additional $1.00 of
Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.6
after giving effect to the transaction.
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 or the Guarantor 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
or the due and punctual performance of the Guarantees and the due and
punctual performance and observance of the covenants and conditions of this
Indenture to be performed by the Guarantor, as the case may be, such
successor Person shall succeed to and be substituted for the Issuer or the
Guarantor, as the case may be, with the same effect as if it had been named
herein as the party of the first part, and the Issuer or the Guarantor
(including any intervening successor to the Issuer or the Guarantor which
shall have become the obligor hereunder) shall be relieved of any further
obligation under this Indenture and the Securities or the Guarantees, as
the case may be; provided, however, that in the case of a sale, lease,
exchange or other disposition of the property and assets of the Issuer or
the Guarantor (including any such intervening successor), the Issuer or
the Guarantor (including any such intervening successor) shall continue to
be liable on its obligations under this Indenture and the Securities and
the Guarantees 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 or the Guarantor, any or all of
the Securities or Guarantees issuable hereunder which theretofore shall not
have been signed by the Issuer or the Guarantor 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 and Guarantees 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 and Guarantees 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 or the Guarantor, such changes in phraseology and form
(but not in substance) may be made in the Securities and the Guarantees,
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. (a) If at
any time (i) the Issuer or the Guarantor 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 or the
Guarantor 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 or the Guarantor 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 and the Guarantor agree to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred, and to compensate the Trustee for any services thereafter reasonably
and properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(b) If at any time (i) the Issuer or the Guarantor 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 or the Guarantor 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 or the Guarantor 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 and the Guarantor shall be deemed
to have paid and discharged the entire indebtedness on all the Securities of
such series and the Guarantees endorsed thereon 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 and the Guarantees endorsed thereon
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 and the Guarantor under Section 3.2 with respect to
Securities of such series and the Guarantees endorsed thereon) 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 and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series and the Guarantees
endorsed thereon 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 and the Guarantees endorsed thereon 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
and the Guarantor under Section 3.2 with respect to Securities of such series)
and the Trustee, on demand of the Issuer or the Guarantor 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 or the Guarantor
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 or the Guarantor is a party or by which it is bound; and
(C) the Issuer or the Guarantor has delivered to the Trustee an
Opinion of Counsel based on the fact that (1) the Issuer or the
Guarantor 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.
(d) In addition to the foregoing and provided the exact amount
described in subparagraph (i) below can be determined at the time of making
the deposit referred to in such subparagraph (i), the Issuer and the
Guarantor shall be deemed to be, and shall be, released from its obligations
under the covenants contained in Sections 3.6 through 3.14 and Articles Nine
and Thirteen hereof on the 91st day after the date of the deposit referred
to in subparagraph (i) below, and the Issuer's and the Guarantor's
respective obligations under all Notes, the Guarantees endorsed thereon and
this Indenture with respect to Sections 3.6 through 3.14 and Articles Nine
and Thirteen 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 or the Guarantor 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
(i) with reference to this provision the Issuer or the Guarantor
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 the Notes (A)
cash in an amount, or (B) 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 (C) 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 the principal of, accreted
original issuer discount, and interest, if any, on all Notes on each
date that such principal, accreted original issue discount or
interest, if any, is due and payable; and
(ii) 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
(iii) the Issuer or the Guarantor has delivered to the Trustee an
Opinion of Counsel to the effect that, and such opinion shall confirm
that, the Holders of the Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Section 10.1
shall be held in trust, and such moneys and all moneys from such U.S.
Government Obligations shall be applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of the particular Securities of such
series for the payment or redemption of which such moneys and U.S.
Government Obligations have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest, if any, but such
moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of, premium, if any, or
interest, if any, on any Security of any series and not applied but remaining
unclaimed for two years after the date upon which such principal, premium, if
any, or interest, if any, shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent and
the Holder of the Securities of such series shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer and the Guarantor 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 and Guarantor Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security or Guarantee, 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, the Guarantor or any partner of the Issuer or the Guarantor or of any
successor, either directly or through the Issuer, the Guarantor 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 having endorsed thereon a Guarantee by the
Holders thereof and as part of the consideration for the issue of the
Securities and the Guarantees.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities. Nothing in this Indenture or in the
Securities or in the Guarantees, 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 of the Issuer and the
Senior Indebtedness of the Guarantor 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 and Guarantor Bound
by Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Issuer or the Guarantor
shall bind its successors and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Guarantor, 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 the Guarantor, or as
required pursuant to the Trust Indenture Act of 1939, may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed, in the case of the Issuer (until
another address of the Issuer is filed by the Issuer with the Trustee), to
Triton Energy Corporation, 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000-0000, Attention: Chairman of the Board, and in the
case of the Guarantor (until another address of the Guarantor is filed by
the Guarantor with the Trustee), to ___________________________________.
Any notice, direction, request or demand by the Issuer or the Guarantor
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, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 or the Guarantor 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 or the Guarantor 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
or the Guarantor 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 or the Guarantor, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Issuer or the Guarantor, as the case may be, 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 the Guarantor 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 or the
Guarantor, 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, EACH SECURITY AND
EACH GUARANTEE 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 Guarantor 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, the Notes or
the Guarantees. The Guarantor designates and appoints Triton Energy
Corporation, 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000-0000, Attention: Xxxxxx X. Xxxxxxx, III and its successors as the
Guarantor'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
Guarantor all process in any action, suit or proceedings that may be
brought against the Guarantor 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 Guarantor 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 Notes or any of them
to take proceedings against the Guarantor 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 or 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 Right of Redemption. The Notes may be redeemed, at
the election of the Issuer, as a whole or from time to time in part, at the
Redemption Prices specified in the form of Note.
SECTION 12.2 Applicability of Article. Redemption of Notes at
the election of the Issuer or otherwise, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision
and this Article Twelve.
SECTION 12.3 Election to Redeem; Notice to Trustee. The election
of the Issuer to redeem any Notes pursuant to Section 12.1 shall be evidenced
by a Board Resolution, a certified copy of which is delivered to the Trustee.
In case of any redemption at the election of the Issuer, the Issuer shall, at
least 60 days prior to the Redemption Date fixed by it (unless a shorter
notice period shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the aggregate principal amount of Notes to be
redeemed.
SECTION 12.4 Selection by Trustee of Notes to Be Redeemed. If
less than all the Notes are to be redeemed, the particular Notes or portions
thereof to be redeemed shall be selected not more than 60 days and not less
than 30 days prior to the Redemption Date by the Trustee from the outstanding
Notes not previously called for redemption, either pro rata, by lot or by
another method the Trustee shall deem fair and reasonable, and the aggregate
principal amounts to be redeemed may be equal to $1,000 or any integral
multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the aggregate principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of
the aggregate principal amount of such Note which has been or is to be
redeemed.
SECTION 12.5 Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Notes to be
redeemed, at its address appearing in the Note register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Notes are to be redeemed, the
identification (and, in the case of a Note to be redeemed in part,
the aggregate principal amount to be redeemed) of the particular
Notes to be redeemed;
(d)that on the Redemption Date the Redemption Price together with
accrued interest to the Redemption Date will become due and payable
upon each such Note or portion thereof, and that unless the Issuer
shall default in payment of the Redemption Price and accrued
interest, interest thereon shall cease to accrue on and after said
date;
(e) the place or places where such Notes are to be surrendered
for payment of the Redemption Price;
(f) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(g) the CUSIP number, if any, relating to such Notes; and
(h) in the case of a Note to be redeemed in part, the aggregate
principal amount of such Note to be redeemed and that after the
Redemption Date upon surrender of such Note, new Note or Notes in the
aggregate principal amount equal to the unredeemed portion thereof
will be issued.
Notice of redemption of Notes to be redeemed at the election of the
Issuer shall be given by the Issuer or, at its request, by the Trustee in the
name and at the expense of the Issuer.
SECTION 12.6 Deposit of Redemption Price. On or prior to 11:00
a.m., New York City time, on any Redemption Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer is acting as its
own Paying Agent, segregate and hold in trust) an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
applicable Redemption Date) sufficient to pay the Redemption Price of all the
Notes or portions thereof which are to be redeemed on that Redemption Date
plus accrued interest to such Redemption Date.
SECTION 12.7 Notes Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Notes so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein
specified plus accrued interest to the Redemption Date and from and after such
date (unless the Issuer shall default in the payment of the Redemption Price)
such Notes shall cease to accrue interest. Upon surrender of any such Note
for redemption in accordance with said notice, such Note shall be paid by the
Issuer at the Redemption Price.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price thereof shall accrue
interest at the rate of 9-3/4% per annum.
SECTION 12.8 Notes Redeemed in Part. Any Note that is to be
redeemed only in part shall be surrendered at the office or agency of the
Issuer maintained for such purpose pursuant to Section 3.2 (with, if the
Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer or the Trustee duly
executed by, the Holder thereof or its attorney duly authorized in writing),
and the Issuer shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of
any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal amount of the Note so surrendered.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness of
the Issuer. (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 of the Issuer, 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 of the Issuer 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 of the Issuer nor Senior
Subordinated Indebtedness and only Indebtedness of the Issuer that is Senior
Indebtedness of the Issuer 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 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 shall occur with respect
to Senior Indebtedness of the Issuer and the maturity of such Senior
Indebtedness of the Issuer 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 of the Issuer or any trustee therefor, unless
and until, in either case, the default has been cured or waived, and any such
acceleration has been rescinded or such Senior Indebtedness of the Issuer 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 of the
Issuer, pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods occurs (a
"Senior Nonmonetary Default"), then, upon the receipt by the Issuer and the
Trustee of written notice thereof (a "Payment Notice") from or on behalf of
holders of such Senior Indebtedness of the Issuer 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 of the Issuer or their representative notify the Trustee that
such Senior Nonmonetary Default is cured or waived or ceases to exist or
the Senior Indebtedness of the Issuer 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 of the
Issuer (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 of the Issuer 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 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) shall have been
paid in xxxx.Xx 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 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 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 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 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. 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 of the Issuer is hereby irrevocably authorized to
endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness of the
Issuer 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 of the
Issuer to remove cash, securities or other property otherwise payable or
deliverable to the Holders.
(g) Senior Indebtedness of the Issuer 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
of the Issuer then outstanding. Upon the payment in full of all Senior
Indebtedness of the Issuer, the Holders of Securities of each series shall be
subrogated to all rights of any holders of Senior Indebtedness of the Issuer
to receive any further payment or distributions applicable to the Senior
Indebtedness of the Issuer 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 of the Issuer, shall, as between the Issuer and its
creditors other than the holders of Senior Indebtedness of the Issuer, 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 of the Issuer, and not on account
of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Issuer in
respect of any security interest the creation of which is not prohibited by
the provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise
ranking on a parity with the Securities or ranking junior to the Securities,
shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior Indebtedness of the Issuer. 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 of the Issuer 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 of the Issuer
(or a trustee or representative on behalf of such holder) as evidence that
such Person is a holder of Senior Indebtedness of the Issuer (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 of the Issuer 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 of the Issuer 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 of the Issuer
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
of the Issuer. Any failure by the Issuer to make any payment on or under any
Senior Indebtedness of the Issuer, other than any Senior Indebtedness of the
Issuer 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 of the
Issuer, 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 of the Issuer 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 of the Issuer 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 of
the Issuer 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
of the Issuer. The Trustee shall be entitled to all the rights set forth in
this Article Thirteen with respect to any Senior Indebtedness of the Issuer
which may at the time be held by it, to the same extent as any other holder of
Senior Indebtedness of the Issuer and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article
Thirteen shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any
time any paying agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this
Article Thirteen shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within
its meaning as fully for all intents and purposes as if the paying agent were
named in this Article Thirteen in addition to or in place of the Trustee;
provided, however, that Sections 13.5 and 13.7 shall not apply to the Issuer
if it acts as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior Indebtedness of the Issuer. No
right of any present or future holders of any Senior Indebtedness of the
Issuer 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 of
the Issuer, 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 of the
Issuer, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness of the Issuer 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 of the Issuer, 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 of the Issuer. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness of the Issuer, 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 of the Issuer, 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 of the Issuer shall
be read into this Indenture against the Trustee.
ARTICLE FOURTEEN
GUARANTEES
SECTION 14.1 Guarantee. The Guarantor hereby unconditionally
guarantees to each Holder of a Security of each series authenticated and
delivered by the Trustee the due and prompt payment of the principal of (and
premium, if any) and interest on such Security and the due and prompt payment
of any sinking fund payments provided for pursuant to the terms of such
Security, when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, according to the terms of such Security and of this Indenture. In
case of the failure of the Issuer punctually to make any such principal,
premium, interest or sinking fund 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 the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, and as if such payment were
made by the Issuer. 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) interest and sinking fund payment, if any, as
may be necessary in order that the net amounts paid to such Holder or the
Trustee, 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), interest and sinking fund payments, if any, as specified in such
Security to which such Holder 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 (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 any Security of any series of this Indenture, any failure
to enforce the provisions of any Security of any series or this Indenture, or
any waiver, modification or indulgence granted to the Issuer with respect
thereto, by the Holder of any Security of any series or the 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 a 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 Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to any Security or the indebtedness evidenced thereby or with respect
to any sinking fund payment required pursuant to the terms of a Security
issued under this Indenture and all demands whatsoever, and covenants that
this Guarantee will not be discharged with respect to any Security except by
payment in full of the principal of (and premium, if any) and interest on
such Security.
SECTION 14.2 Subrogation. The Guarantor shall be subrogated to
all rights of the Holder of a Security against the Issuer 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 relevant series shall have been paid in
full.
SECTION 14.3 Execution and Delivery of Guarantees. To evidence
its guarantee set forth in Section 14.1, the Guarantor hereby agrees to
execute the Guarantee in a form established pursuant to Section 2.1, to be
endorsed on each Security authenticated and delivered by the Trustee. Each
such Guarantee shall be signed manually or by facsimile by a person duly
authorized thereto by Board Resolution of the Guarantor.
Guarantees bearing the facsimile signature of any individual who
was at any time an officer of the Guarantor shall bind the Guarantor,
notwithstanding that such individual shall have ceased to be an officer prior
to the authentication and delivery of the Securities upon which such
Guarantees are endorsed or was not an officer at the date of such Securities.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor.
SECTION 14.4 Agreement to Subordinate. The Guarantor agrees, and
each Securityholder by accepting a Security agrees, that all payments pursuant
to the Guarantee of the Guarantor are 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 all payments pursuant to the Securities are
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness of the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this Amended
and Restated Indenture to be duly executed, all as of the date first above
written.
TRITON ENERGY CORPORATION, as
Issuer
Attest:____________________ By:______________________
Title: Title:
Attest:____________________ TC HOLDINGS LIMITED, as
Title: Guarantor
By:_____________________
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
Attest:____________________ By:_______________________
Title: Title:
EXHIBIT A
[FORM OF FACE OF SECURITY]
FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000
OF PRINCIPAL AMOUNT OF THIS SECURITY IS $248.24, THE ISSUE DATE IS
DECEMBER 16, 1993 AND THE YIELD TO MATURITY IS 9-3/4%.
TRITON ENERGY CORPORATION
9-3/4% Senior Subordinated Discount Notes due 2000
No. ____
Issue Date: December 16, 1993
Issue Price: $751.76
(for each $1,000 principal amount)
Original Issue Discount: $248.24
(for each $1,000 principal amount)
Triton Energy Corporation, a Delaware corporation (the "Issuer"),
promises to pay to ____________ or its registered assigns, the principal
amount of ___________ DOLLARS ($__________) on December 15, 2000. This Note
shall not bear interest except as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of this
Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed under its facsimile corporate seal.
TRITON ENERGY CORPORATION, as
Issuer
Attest:____________________ By:___________________________
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF NOTE]
9-3/4% Senior Subordinated Discount Note due 2000
1. Interest. There will be no payments of interest on this
Note prior to December 15, 1996. Commencing December 15, 1996, interest
on this Note will accrue at the rate of 9-3/4% per annum and will be
payable in cash semiannually on each December 15 and June 15, commencing
June 15, 1997, to Holders of record on the close of business on the
immediately preceding December 1 and June 1; provided that if the principal
amount hereof or any portion of such principal amount is not paid
when due (whether upon acceleration pursuant to Section 5.2 of the
Indenture, upon the date set for payment of the Redemption Price pursuant
to paragraph 6 hereof, upon the date set for payment of the Change in
Control Purchase Price or Colombian Asset Redemption Price, or other
required payments pursuant to paragraph 8 hereof or upon the Stated
Maturity of this Note), then in each such case the overdue amount
shall bear interest at the rate of 9-3/4% per annum, compounded
semiannually (to the extent that the payment of such interest shall be
legally enforceable), which interest shall accrue from the date such
overdue amount was due to the date payment of such amount, including
interest thereon, has been made or duly provided for. All such interest
shall be payable on demand.
2. Original Issue Discount. Original issue discount (the
difference between the issue price and the principal amount of the Note), in
the period during which any of the Notes remains outstanding, shall accrue at
a rate of 9 3/4% per annum, on a semiannual bond equivalent basis using a
360-day year composed of twelve 30-day months, commencing on the date of
issuance of this Note.
3. Method of Payment. Subject to the terms and conditions of
the Indenture, payments in respect of the Notes shall be made at the office
or agency of the Issuer maintained for that purpose in the City and State
of New York or, at the option of the Issuer, payments in respect of the
Notes may be made by check mailed to the Holders of the Notes at their
respective addresses set forth in the register of Holders of Notes. The
Issuer will pay cash amounts in money of the United States that at the
time of payment is legal tender for payment of public and private debts.
4. Paying Agent and Registrar. Initially, United States Trust
Company of New York (the "Trustee"), will act as paying agent and registrar.
The Issuer may appoint and change any paying agent or registrar without
notice, other than notice to the Trustee. The Issuer or any of its
Subsidiaries or any of their Affiliates may act as paying agent or registrar.
5. Indenture. The Issuer issued the Notes under an Indenture,
dated as of December 15, 1993, and amended and restated as of ____________,
199_, among the Issuer, TC Holdings Limited (the "Guarantor") and the Trustee
(the "Indenture"). The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act of 1939").
Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms,
and holders are referred to the Indenture and the Trust Indenture Act of 1939
for a statement of those terms.
The Notes are general unsecured obligations of the Issuer,
limited to $170 million aggregate principal amount.
6. Subordination. The Indebtedness represented by the Notes is
expressly subordinate and junior in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Issuer whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder of a Note
by its acceptance hereof agrees and accepts to be bound by such provisions.
7. Redemption at the Option of the Issuer. No sinking fund is
provided for the Notes. Commencing December 15, 1997, the Notes will be
subject to redemption at the option of the Issuer, in whole or in part, at any
time and from time to time, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as a percentage of principal
amount) set forth below plus accrued and unpaid interest to the redemption
date, if redeemed during the 12-month period beginning on December 15 of the
years indicated below:
Year Percentage
1997 . . . . . . . . . . . . . . . . . . . . 104.875%
1998 . . . . . . . . . . . . . . . . . . . . 102.438%
1999 and thereafter . . . . . . . . . . . . . . 100.000%
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Notes to be redeemed on the
Redemption Date, together with accrued interest thereon to the Redemption
Date, is deposited with the Paying Agent prior to or on the Redemption Date,
on and after such date interest ceases to accrue on such Notes or portions
thereof.
9. Offers to Repurchase the Notes by the Issuer. In certain
circumstances relating to Asset Sales and Changes in Control described in the
Indenture, the Issuer may be required to make offers to repurchase the Notes.
10. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 of principal
amount and integral multiples of $1,000. A Holder may register the transfer
of or exchange Notes in accordance with the Indenture. The registrar may
require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer shall not be required to exchange
or register a transfer of (a) any Notes for a period of 15 days next
preceding the first mailing or publication of notice of redemption of
Notes to be redeemed, (b) any Notes selected, called or being called for
redemption, in whole or in part, except, in the case of any Note to be
redeemed in part, the portion thereof not so to be redeemed or (c) any
Note if the Holder thereof has exercised its right, if any, to require
the Issuer to repurchase such Note in whole or in part, except
the portion of such Note not required to be repurchased.
11. Persons Deemed Owners. The registered Holder of this Note
may be treated as the owner of this Note for all purposes.
12. Unclaimed Money. The Trustee and each paying agent shall
each return to the Issuer upon written request any money held by them for the
payment of any amount with respect to the Notes that remains unclaimed for two
years. After return to the Issuer, Holders entitled to the money must look to
the Issuer for payment as general creditors unless an applicable abandoned
property law designates another person.
13. Amendment; Waiver. Subject to certain exceptions set
forth in the Indenture, (i) the Indenture or the Notes may be amended with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding and (ii) certain defaults or
noncompliance with certain provisions may be waived with the written consent
of the Holders of a majority in aggregate principal amount of the Notes at
the time outstanding. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Issuer, the Guarantor and
the Trustee may amend the Indenture or the Notes to cure any ambiguity,
defect or inconsistency, or to comply with Article Nine of the Indenture,
or to make any change that does not adversely affect the rights of any
Holder of Notes.
14. Defaults and Remedies. Under the Indenture, Events of
Default include, among others, (i) default in the payment of any installment
of interest on the Notes as and when the same becomes due and payable, and
continuance of such default for a period of 30 days; (ii) default in the
payment of the principal amount, Redemption Price, Change in Control Purchase
Price, Colombian Sale Redemption Price or Asset Sale Offer Price when the same
becomes due and payable; (iii) failure by the Issuer or the Guarantor to
comply with other agreements in the Indenture or the Notes, subject to notice
and lapse of time; (iv) certain Indebtedness of the Issuer, the Guarantor or
certain Subsidiaries of the Guarantor for money borrowed in an aggregate
outstanding principal amount of $10,000,000 or more becoming due and payable
prior to final maturity thereof or default in any payment when due at final
maturity of any such Indebtedness; (v) certain judgments or orders rendered
against the Issuer, the Guarantor or certain Subsidiaries of the Guarantor in
an aggregate principal amount of more than $10,000,000; and (vi) certain
events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Trustee, or the Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding, may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes becoming
due and payable immediately upon the occurrence of such Events of Default.
Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default (except a Default in payment of
amounts specified in clauses (i) and (ii) above) if it determines that
withholding notice is in their best interests.
15. Trustee Dealings with the Issuer and the Guarantor.
Subject to certain limitations imposed by the Trust Indenture Act of 1939, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer, the Guarantor or their respective
Affiliates and may otherwise deal with the Issuer, the Guarantor or their
respective Affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Issuer or the Guarantor shall not have any
liability for any obligations of the Issuer or the Guarantor under the Notes,
the Guarantees or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note having
endorsed thereon a Guarantee, each Note Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue
of the Notes and the Guarantees.
17. Authentication. This Note and the Guarantee endorsed
hereon shall not be valid until an authorized signatory of the Trustee
manually signs the Trustee's Certificate of Authentication on the other side
of this Note.
18. Defeasance, Covenant Defeasance. The Notes and the
Guarantees are subject to defeasance and covenant defeasance as provided in
the Indenture.
19. Abbreviations. Customary abbreviations may be used in the
name of a Holder of Notes or an assignee, such as TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= custodian), and
U/G/M/A (= Uniform Gift to Minors Act).
20. GOVERNING LAW. THIS NOTE, THE GUARANTEES ENDORSED HEREON
AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
The Issuer will furnish to any Holder of Notes upon written
request and without charge a copy of the Indenture. Requests may be made to:
Triton Energy Corporation, 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, Attention of Corporate Secretary.
EXHIBIT B
GUARANTEE OF TC HOLDINGS LIMITED
19. Guarantee. For value received, [_________________________], 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 the 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 Triton Energy Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer",
which term includes any successor corporation under such Indenture)
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 the Stated Maturity,
by declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Issuer.
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 failure to enforce the provisions of such Security or such
Indenture, or any waiver, modification or indulgence granted to the Issuer
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 Issuer, any right to
require a proceeding first against the Issuer, 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 Issuer 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.
20. Subordination. The Guarantor agrees, and each Security
holder by accepting a Security agrees, that all payments pursuant to the
Guarantee of the Guarantor are subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Guarantor, to the
same extent and manner that all payments pursuant to the Securities are
subordinated and junior in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all Senior
Indebtedness of the Issuer, whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be signed in facsimile by a person duly authorized in that behalf.
TC HOLDINGS LIMITED
_________________________________
Authorized Signatory
Dated the date on the face hereof.
EXHIBIT C
INTERCOMPANY AGREEMENT
Dallas, Texas
_________, ____
FOR VALUE RECEIVED, the undersigned, ________________, a
___________ corporation ("Maker"), hereby unconditionally promises to pay to
the order of TC Holdings Limited, a Cayman Islands company ("Payee"), at
[address], or such other address given to Maker by Payee, the principal sum of
________ DOLLARS ($________).
SECTION 1. Payment Obligations. Maker shall pay interest the
_____ day of _____ of each year. Interest shall accrue at the rate of ______%
above the prime rate quoted from time to time by Xxxxxx Guaranty Trust Company
or New York with respect to loans to its preferred customers. After maturity,
this Note shall bear interest at the highest lawful rate.
All unpaid principal of and accrued but unpaid interest on this
Note shall be payable on ___________, ____.
SECTION 2. Default Rate. All past due principal of and, to the
extent permitted by applicable law, interest upon this Note shall bear
interest at the lesser of the highest lawful rate and ____% per annum.
SECTION 3. Rights and Remedies. If Maker shall fail to pay when
due the accrued interest on this Note and such failure shall not be cured
within five days, then Payee may declare the unpaid principal of this Note,
and unpaid interest on this Note, to be immediately due and payable, and
the same shall thereupon become due and payable, without notice, demand,
presentment, notice of dishonor, notice of acceleration, notice of intent
to accelerate, protest or other formalities of any kind, all of which are
hereby expressly waived by Maker.
SECTION 4. Waiver. Maker and each surety, endorser, guarantor
and other party ever liable for payment of any sums of money payable upon this
Note, jointly and severally waive presentment, demand, protest, notice of
protest and non-payment or other notice of any kind, and agree that their
liability under this Note shall not be affected by any renewal or extension in
the time of payment hereof, or in any indulgences, or by any release or change
in any security for the payment of this Note, and hereby consent to any and
all renewals, extensions, indulgences, releases or changes, regardless of the
number of such renewals, extensions, indulgences, releases or changes.
No waiver by Payee of any of its rights or remedies hereunder
or under any other document evidencing or securing this Note or otherwise,
shall be considered a waiver of any other subsequent right or remedy of Payee;
no delay or omission in the exercise or enforcement by Payee of any rights or
remedies shall ever be construed as a waiver of any right or remedy of Payee;
and no exercise or enforcement of any such rights or remedies shall ever be
held to exhaust any right or remedy of Payee.
SECTION 5. Subsequent Advances. This Note shall represent the
unpaid principal balance of an account payable owing by Maker to Payee on the
date hereof. Payee shall have no obligation to make any additional advances to
Maker.
SECTION 6. Notice. Whenever this Note requires or permits any
notice, approval, request or demand from one party to another, the notice,
approval, request or demand must be in writing and shall be deemed to have
been given when personally served or when deposited in the United States
mails, registered or certified, return receipt requested, addressed to the
party to be notified at the following address (or at such other address as
may have been designated by written notice):
Payee: TC Holdings Limited
[address]
Maker: __________________________
__________________________
__________________________
__________________________
The foregoing is not intended and shall not be deemed under any circumstances
to require the holder hereof to give notice of any type or nature to Maker not
expressly required by other provisions of this Note.
SECTION 7. Usury Laws. Regardless of any provisions contained in
this Note, the Payee shall never be deemed to have contracted for or be
entitled to receive, collect or apply as interest on the Note, any amount in
excess of the highest lawful rate, and, in the event Payee ever receives,
collects or applies as interest any such excess, such amount which would be
excessive interest shall be applied to the reduction of the unpaid principal
balance of this Note, and, if the principal balance of this Note is paid in
full, any remaining excess shall forthwith be paid to Maker. In determining
whether or not the interest paid or payable under any specific contingency
exceeds the highest lawful rate, Maker and Payee shall, to the maximum extent
permitted under applicable law, (i) characterize any non-principal payment
(other than payments which are expressly designated as interest payments
hereunder) as an expense, fee, or premium, rather than as interest, (ii)
exclude voluntary prepayments and the effects thereof and (iii) spread the
total amount of interest throughout the entire contemplated term of this Note
so that the interest rate is uniform throughout such term.
SECTION 8. APPLICABLE LAW. THIS NOTE IS INTENDED TO BE PERFORMED IN
THE STATE OF TEXAS. EXCEPT TO THE EXTENT THAT THE LAWS OF THE UNITED STATES
MAY APPLY TO THE TERMS HEREOF, THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF
THIS NOTE.
By:_______________________________________
