Exhibit 10.26
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of November 16, 1995 (this
"Supplemental Indenture"), between TRITON ENERGY CORPORATION, a Delaware
corporation, as issuer (the "Company"), and CHEMICAL BANK, a New York banking
corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and the Trustee are parties to the Indenture
dated as of November 13, 1992 (as amended by the First Supplemental Indenture,
dated as of July 1, 1993, the Second Supplemental Indenture, dated as of
August 16, 1993, the Third 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, the Company has duly authorized the creation of an issue of
its Senior Subordinated Discount Notes due 1997 (hereinafter called the
"Securities"), of substantially the amount set forth in the Indenture; and
WHEREAS, the Board of Directors of the Company has adopted a
resolution authorizing the Company to enter into this Supplemental Indenture;
and
WHEREAS, the Company 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 9.02 of the Indenture and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the Holders from time to time
of the Securities as follows:
SECTION 1. Amendments
(a) Amendment to the Indenture to allow Holding Company.
Notwithstanding anything contained in Section 9.02 of the Indenture to
the contrary, if, at any time during the term of the Indenture, the Company
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 Company, the Company may
deliver to the Trustee an Officers' Certificate and Opinion of Counsel as
required by Sections 1.04 and 9.03 of the Indenture and upon delivery of such
Officers' Certificate and Opinion of Counsel, the Company, 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 Securities by the Parent) without the consent of the Holders of
the Securities 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 the Company, the Parent, the Trustee and all Holders of the
Securities.
In the event that the creation of the holding company is effected through
the merger (the "Merger") of a person that is a Subsidiary of the Parent with
and into the Company, with the Company being the surviving corporation (the
"Surviving Corporation"), the Surviving Corporation shall not be required to
satisfy the condition contained in Section 8.01(4) 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.
(b) Section 1.01 shall be amended by deleting the definitions of
"Columbian Assets" and "Permitted Indebtedness" and substituting therefor, in
their respective proper alphabetical orders, the following definitions:
"'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 Company or a Subsidiary of the Company 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 Company (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 Company 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 Company or any of its
Subsidiaries in the Xxxxxxxx de las Atalayas and the Tauramena contract areas
in Colombia."
"'Permitted Indebtedness' means (i) the Securities; (ii) Indebtedness of
the Company or any of its Subsidiaries or Special Subsidiaries outstanding on
December 16, 1993; (iii) obligations pursuant to Interest Rate Agreements or
Currency Agreements; (iv) with respect to any assets acquired or constructed
after the date hereof (including unimproved real property acquired prior to
the date hereof), Indebtedness under Capitalized Lease Obligations and
purchase money mortgages; (v) Indebtedness of the Company 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; (vi) loans or advances from a Subsidiary
to the Company or another Subsidiary, provided that the obligation of the
obligor of such Indebtedness is subject to an Intercompany Agreement; (vii)
indebtedness of the Company 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) guaranties 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 Intercompany Agreement, (II) such
guarantee is subordinated to the Securities, and the agreement governing the
guarantee includes subordination provisions substantially similar to those set
forth in Article XI to the same extent as if the Securities were Senior
Indebtedness and (III) such incurrence of the guarantee is otherwise permitted
under Section 10.08; (viii) any obligation or liability of the Company or any
Subsidiary in respect of leasehold interests assigned by the Company or such
Subsidiary to any other person; (ix) Indebtedness of the Company 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 Securities, and the agreement
governing such Indebtedness includes subordination provisions substantially
similar to those set forth in Article XI to the same extent as if the
Securities were Senior Indebtedness and (III) such incurrence of Indebtedness
is otherwise permitted under Section 10.08; and (x) 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 herein, 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 or replaced is Indebtedness of the
Company, such renewal, extension, substitution, refinancing or replacement
shall be Indebtedness of the Company; and (xi) additional Indebtedness
(including Acquired Indebtedness) having a principal amount outstanding at
issuance or at the date of assumption not to exceed $100,000,000, at any time
outstanding.
(c) The following defined terms shall be deleted in their entirety from
Section 1.02 of the Indenture and each other place where they appear in the
Indenture: "Consolidated Net Worth Purchase Price", "Offer", "Purchase Date"
and "Offer Amount".
(d) Section 5.01 shall be deleted in its entirety and the following new
Section 5.01 shall be substituted therefor:
"SECTION 5.01. Events of Default. "Event of Default", wherever used
herein, 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 XI or be voluntary or involuntary or be effected by
the operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of the Principal Amount, Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price or any other required payment under this
Indenture when the same becomes due and payable as herein provided, whether at
its Stated Maturity, upon redemption, upon declaration of acceleration, when
due for purchase by the Company or otherwise, whether or not such payment
shall be prohibited by this Indenture; or
(b) default in the performance, or breach, of any covenant or
agreement of the Company hereunder (other than a default in the
performance, or breach, of a covenant or agreement that is specifically dealt
with elsewhere in this Section), 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 Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in Principal Amount of the outstanding Securities a
written notice specifying such default or breach and stating that such notice
is a "Notice of Default" hereunder; or
(c) (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 Company or any Material Subsidiary (except for
any Special Subsidiary less than 30% of the common equity of which is directly
or indirectly owned by the Company 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
(d) final judgments or orders rendered against the Company or any
Material Subsidiary (except for any Special Subsidiary less than 30% of the
common equity of which is directly or indirectly owned by the Company 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
(e) the entry of a decree or order by a court having jurisdiction
in the premises (i) for relief in respect of the Company or any Material
Subsidiary (except for any Special Subsidiary less than 30% of the common
equity of which is directly or indirectly owned by the Company as of the date
of this Indenture) in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal or state bankruptcy, insolvency,
reorganization or similar law, or (ii) adjudging the Company or any such
Material Subsidiary a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
such Material Subsidiary under the Federal Bankruptcy Code or any other
applicable Federal or state law; or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or any 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
(f) the institution by the Company or any Material Subsidiary
(except for any Special Subsidiary less than 30% of the common equity of which
is directly or indirectly owned by the Company as of the date of this
Indenture) of a voluntary case or proceeding under the Federal Bankruptcy Code
or any other applicable Federal or state law or any other case or proceedings
to be adjudicated a bankrupt or insolvent, or the consent by the Company or
any such Material Subsidiary to the entry of a decree or order for relief in
respect of the Company or any such Material Subsidiary in any involuntary case
or proceeding under the Federal Bankruptcy Code or any other applicable
Federal or state law or to the institution of bankruptcy or insolvency
proceedings against the Company or any such Material Subsidiary, or the filing
by the Company or any such Material Subsidiary of a petition or answer or
consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or state law 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 any of the Company or any 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 Company or any such Material Subsidiary in furtherance of any such action;
or
(g) default by the Company in the performance or breach of the
terms of Article VIII.
The Company 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 5.01, 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 (b) or
clause (c), its status and what action the Company is taking or proposes to
take with respect thereto."
(e) Section 10.07 shall be deleted in its entirety and the following new
Section 10.07 shall be substituted therefor:
"SECTION 10.07. Limitation on Indebtedness. The Company 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 or Acquired Indebtedness (other
than Senior Indebtedness) has no sinking fund or amortization payment date or
final maturity date prior to the Stated Maturity of the Securities and (ii) in
the case of Indebtedness subordinated in right of payment to the Securities,
the instrument evidencing such Indebtedness shall include subordination
provisions substantially similar to those set forth in Article XI as if the
Securities were Senior Indebtedness with respect to such Indebtedness and (b)
after giving effect thereto and to any acquisition being financed through the
incurrence of such Indebtedness and to any Acquired Indebtedness incurred or
assumed therewith on a pro forma basis, either (i) the ratio expressed as a
percentage of (A) the Indebtedness of the Company and its Restricted
Subsidiaries to (B) the sum of (1) the Oil and Gas Reserve Estimate with
respect to the Company and the Restricted Subsidiaries plus (2) the value of
the Company'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 Company and its Restricted Subsidiaries to (B) the
sum of (1) the Indebtedness of the Company and its Restricted Subsidiaries
plus (2) the product of the number of outstanding shares of the Company's
common stock as of the date of determination multiplied by the Average Quoted
Price of such Capital Stock, plus (3) the product of the number of outstanding
shares of the Company's Capital Stock (other than shares held by the Company,
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 Company 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 Company
and, if applicable, the acquired person; provided, however, that the Company
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, reasonably satisfactory to the Trustee, (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 Company delivers to the Trustee a
certificate to the effect that such estimate has been prepared in accordance
with the
requirements of this Indenture."
(f) Section 10.14 shall be deleted in its entirety and the following
shall be substituted therefor:
"SECTION 10.14. Intentionally omitted."
SECTION 2. MISCELLANEOUS.
2.1 Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings given such terms in the Indenture.
2.2 The Trustee. The recitals contained herein shall be taken as
the statements of the Company 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.
2.3 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.
2.4 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.
2.5 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:
CHEMICAL BANK, as Trustee
Attest:____________________ By:___________________________
Title: Title:
Exhibit A
TRITON ENERGY CORPORATION,
as Issuer
TC HOLDINGS LIMITED
as Guarantor
AND
CHEMICAL BANK,
as Trustee
____________________________
FORM OF AMENDED AND RESTATED INDENTURE
Dated as of November 13, 1992
as amended and restated as of July 1, 1993
and ____________ ___, 1995
____________________________
$240,000,000
Senior Subordinated Discount Notes due 1997
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 6.02; 6.07; 6.08
Section 311(a)&(b) . . . . . . . . . . . . . . . . 6.02; 6.10
Section 311(a),(b),(c) . . . . . . . . . . . . . . . . . . 6.02
Section 312(a) . . . . . . . . . . . . . . . . . . . . . 7.01
Section 312(a),(b),(c) . . . . . . . . . . . . . . . . . . 7.02
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 7.03
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . 7.03; 7.04
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.03
Section 314(a) . . . . . . . . . . . . . . . . . . .7.04; 10.08
(a)(4)1 . . . . . . . . . . . . . . . . . . . . . . . 0.17
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 1.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 1.04
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 1.04
Section 315(a),(b),(c),(d) . . . . . . . . . . . . . . . . 6.01
Section 315(a),(b),(c),(d),(e) . . . . . . . . . . . . . . 9.03
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . 6.04
Section 316(a)(last sentence) . . . . . . . . . . . . . . . 1.10
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . .10.03
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 1.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1.10
Note: The Cross-Reference Table shall not for any purpose be deemed
to be part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . 16
ARTICLE I
Definitions and Other Provisions of General Application . 17
SECTION 1.01. Definitions . . . . . . . . . . . . . . 17
Acquired Indebtedness . . . . . . . . . . . 17
Affiliate . . . . . . . . . . . . . . . . . 17
Agent . . . . . . . . . . . . . . . . . . . 18
Asset Sale . . . . . . . . . . . . . . . . . 18
Average Quoted Price . . . . . . . . . . . . 18
Board of Directors . . . . . . . . . . . . . 18
Business Day . . . . . . . . . . . . . . . . 18
Capital Stock . . . . . . . . . . . . . . . 19
Capitalized Lease Obligation . . . . . . . . 19
Cash Equivalents . . . . . . . . . . . . . . 19
Change in Control . . . . . . . . . . . . . 19
Colombian Assets . . . . . . . . . . . . . . 19
Company . . . . . . . . . . . . . . . . . . 20
Company Order . . . . . . . . . . . . . . . 20
Consolidated Net Income . . . . . . . . . . 20
Consolidated Net Worth . . . . . . . . . . . 20
Corporate Trust Office . . . . . . . . . . . 20
Currency Agreement . . . . . . . . . . . . . 20
Default . . . . . . . . . . . . . . . . . . 20
Designated Senior Indebtedness . . . . . . . 20
Exchange Act . . . . . . . . . . . . . . . . 21
Federal Bankruptcy Code . . . . . . . . . . 21
GAAP . . . . . . . . . . . . . . . . . . . . 21
Guarantee . . . . . . . . . . . . . . . . . 21
Guarantee . . . . . . . . . . . . . . . . . 21
Guarantor . . . . . . . . . . . . . . . . . 21
Holder or Securityholder . . . . . . . . . . 21
Indebtedness . . . . . . . . . . . . . . . . 22
Indenture . . . . . . . . . . . . . . . . . 22
Intercompany Agreement . . . . . . . . . . . 22
Interest Rate Agreements . . . . . . . . . . 22
Internal Revenue Code . . . . . . . . . . . 22
Investment . . . . . . . . . . . . . . . . . 22
Issue Price . . . . . . . . . . . . . . . . 23
Joint Venture . . . . . . . . . . . . . . 23
Legal Holiday . . . . . . . . . . . . . . 23
Lien . . . . . . . . . . . . . . . . . . . 23
Make-Whole Premium . . . . . . . . . . . . 23
Material Subsidiary . . . . . . . . . . . 23
Net Cash Proceeds . . . . . . . . . . . . 23
Non-payment Default . . . . . . . . . . . 24
Officers' Certificate . . . . . . . . . . 24
Oil and Gas Reserve Estimate . . . . . . . 24
Opinion of Counsel . . . . . . . . . . . . 24
Original Issue Discount . . . . . . . . . 24
Paying Agent . . . . . . . . . . . . . . . 24
Payment Default . . . . . . . . . . . . . 25
Permitted Indebtedness . . . . . . . . . . 25
Permitted Investments . . . . . . . . . . 26
Person . . . . . . . . . . . . . . . . . . 26
Preferred Stock . . . . . . . . . . . . . 26
Principal or Principal Amount . . . . . . 26
Quoted Price . . . . . . . . . . . . . . . 26
Redeemable Stock . . . . . . . . . . . . . 26
Redemption Date . . . . . . . . . . . . . 27
Redemption Price . . . . . . . . . . . . . 27
Registrar . . . . . . . . . . . . . . . . 27
Restricted Subsidiary . . . . . . . . . . 27
SEC . . . . . . . . . . . . . . . . . . . 27
Securities . . . . . . . . . . . . . . . . 27
Senior Indebtedness of the Company . . . . 27
Senior Indebtedness of the Guarantor . . . 28
Special Subsidiaries . . . . . . . . . . . 28
Standard Yield . . . . . . . . . . . . . . 28
Stated Maturity . . . . . . . . . . . . . 29
Subsidiary . . . . . . . . . . . . . . . . 29
TIA or Trust Indenture Act . . . . . . . . 29
Treasury Yield . . . . . . . . . . . . . . 00
Xxxxxx Xxxxxxxx . . . . . . . . . . . . . 29
Trustee . . . . . . . . . . . . . . . . . 30
Voting Stock . . . . . . . . . . . . . . . 30
Wholly-owned Subsidiary . . . . . . . . . 30
SECTION 1.02. Other Definitions . . . . . . . 30
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act . . . . . . . . 30
SECTION 1.04. Compliance Certificates and Opinions 31
SECTION 1.05. Form of Documents Delivered to Trustee 31
SECTION 1.06. Acts of Holders . . . . . . . . . . . 32
SECTION 1.07. Notices, etc. to Trustee, Company and
Guarantor . . . . . . . . . . . . 33
SECTION 1.08. Notice to Holders of Securities; Waiver 33
SECTION 1.09. Language of Notices . . . . . . . . . 34
SECTION 1.10. Conflict with Trust Indenture Act . . 34
SECTION 1.11. Effect of Headings and Table of Contents 34
SECTION 1.12. Successors and Assigns . . . . . . . . 34
SECTION 1.13. Separability Clause . . . . . . . . . . . 34
SECTION 1.14. Benefits of Indenture . . . . . . . . . . 34
SECTION 1.15. Governing Law . . . . . . . . . . . . . . 34
SECTION 1.16. Submission to Jurisdiction . . . . . . . 35
SECTION 1.17. Legal Holidays . . . . . . . . . . . . . 35
ARTICLE II
The Securities . . . . . . . 35
SECTION 2.01. Forms Generally . . . . . . . . . . . . 35
SECTION 2.02. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . 36
SECTION 2.03. Temporary Securities . . . . . . . . . 38
SECTION 2.04. Registration, Transfer and Exchange. . 38
SECTION 2.05. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . 40
SECTION 2.06. Persons Deemed Owners . . . . . . . . . 41
SECTION 2.07. Cancellation . . . . . . . . . . . . . 41
SECTION 2.08. Computation of Original Issue Discount 41
ARTICLE III
Redemption of Securities . . . . . . 42
SECTION 3.01. Right of Redemption . . . . . . . . . . . 42
SECTION 3.02. Applicability of Article. . . . . . . . . 42
SECTION 3.03. Election to Redeem; Notice to Trustee . . 42
SECTION 3.04. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . 42
SECTION 3.05. Notice of Redemption . . . . . . . . . . 42
SECTION 3.06. Deposit of Redemption Price. . . . . . . 43
SECTION 3.07. Securities Payable on Redemption Date. . 43
SECTION 3.08. Securities Redeemed in Part . . . . . . . 44
ARTICLE IV
Satisfaction and Discharge . . . . . 44
SECTION 4.01. Discharge of Liability on Securities . . 44
SECTION 4.02. Repayment to the Company . . . . . . . . 45
ARTICLE V
Defaults and Remedies . . . . . . . 45
SECTION 5.01. Events of Default. . . . . . . . . . 45
SECTION 5.02. Acceleration of Maturity; Rescission . 48
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . 48
SECTION 5.04. Trustee May File Proofs of Claim . . 49
SECTION 5.05. Trustee May Enforce Claims without
Possession of Securities . . . . . 50
SECTION 5.06. Application of Money Collected . . . . 50
SECTION 5.07. Limitations on Suits . . . . . . . . . 51
SECTION 5.08. Unconditional Right of Holders to Receive
Payment . . . . . . . . . . . . . . . 51
SECTION 5.09. Restoration of Rights and Remedies . . 52
SECTION 5.10. Rights and Remedies Cumulative . . . . 52
SECTION 5.11. Delay or Omission Not Waiver . . . . . 52
SECTION 5.12. Control by Holders of Securities . . . 52
SECTION 5.13. Waiver of Past Defaults . . . . . . . . 53
SECTION 5.14. Waiver of Stay or Extension Laws . . . 53
ARTICLE VI
Trustee . . . . . . . . . 53
SECTION 6.01. Rights of Trustee . . . . . . . . . . . 53
SECTION 6.02. Individual Rights of Trustee . . . . . 55
SECTION 6.03. Trustee's Disclaimer . . . . . . . . . 55
SECTION 6.04. Notice of Default. . . . . . . . . . . 55
SECTION 6.05. Compensation and Indemnity . . . . . . 55
SECTION 6.06. Replacement of Trustee . . . . . . . . 56
SECTION 6.07. Successor Trustee by Merger, Etc. . . . 57
SECTION 6.08. Eligibility; Disqualification . . . . . 57
SECTION 6.09. Money Held in Trust . . . . . . . . . . 57
SECTION 6.10. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . 57
ARTICLE VII
Holders' Lists and Reports by Trustee,
Company and the Guarantor . . . . . 58
SECTION 7.01. Company and Guarantor to Furnish Trustee
Names and Addresses of Holders . . . 58
SECTION 7.02. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . 58
SECTION 7.03. Reports by Trustee . . . . . . . . . . 58
SECTION 7.04. Reports by Company and the Guarantor . 59
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease 60
SECTION 8.01. Company or Guarantor May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . 60
SECTION 8.02. Successor Person Substituted for Company 61
ARTICLE IX
Amendments . . . . . . . . 61
SECTION 9.01. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . 61
SECTION 9.02. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . 62
SECTION 9.03. Execution of Supplemental Indentures . 63
SECTION 9.04. Effect of Supplemental Indentures . . 63
SECTION 9.05. Conformity with Trust Indenture Act . . 63
SECTION 9.06. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . 64
ARTICLE X
Covenants . . . . . . . . . 64
SECTION 10.01. Payment of Securities . . . . . . . . . 64
SECTION 10.02. Maintenance of Office or Agency . . . . 64
SECTION 10.03. Money for Security Payments to Be Held in
Trust . . . . . . . . . . . . . . . . 65
SECTION 10.04. Corporate Existence . . . . . . . . . . 66
SECTION 10.05. Payment of Taxes and Other Claims . . . 66
SECTION 10.06. Maintenance of Properties and Insurance 67
SECTION 10.07. Limitation on Indebtedness . . . . . . 67
SECTION 10.08. Limitation on Restricted Payments . . . 69
SECTION 10.09. Limitation Upon Other Senior Subordinated
Indebtedness . . . . . . . . . . . . 72
SECTION 10.10. Limitation on Liens . . . . . . . . . . 72
SECTION 10.11. Limitation on Transactions with
Affiliates . . . . . . . . . . . . . 72
SECTION 10.12. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries . 73
SECTION 10.13. Purchase of Securities Upon Change in
Control . . . . . . . . . . . . . . . 74
SECTION 10.14. Intentionally omitted. . . . . . . . . 77
SECTION 10.15. Limitation on Guaranties . . . . . . . 77
SECTION 10.16. Disposition of Proceeds of Asset Sales 78
SECTION 10.17. Compliance Certificates . . . . . . . . 83
SECTION 10.18. SEC Reports and Reports to
Securityholders . . . . . . . . . . 84
ARTICLE XI
Subordination of Securities . . . . . 84
SECTION 11.01. Securities Subordinate to Senior
Indebtedness of the Company . . . . . 84
SECTION 11.02. Payment Over of Proceeds Upon Dissolution,
etc. . . . . . . . . . . . . . . . . 85
SECTION 11.03. Suspension of Payment When Senior
Indebtedness of the Company in Default.87
SECTION 11.04. Payment Permitted if No Default . . . . 88
SECTION 11.05. Subrogation to Rights of Holders of Senior
Indebtedness of the Company . . . . . 88
SECTION 11.06. Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . . 89
SECTION 11.07. Trustee to Effectuate Subordination . . 89
SECTION 11.08. No Waiver of Subordination Provisions . 89
SECTION 11.09. Notice to Trustee . . . . . . . . . . . 90
SECTION 11.10. Reliance on Judicial Order or Certificate
of Liquidating Agent . . . . . . . . 91
SECTION 11.11. Rights of Trustee as a Holder of Senior
Indebtedness of the Company; Preservation
of Trustee's Rights . . . . . . . . . 91
SECTION 11.12. Article Applicable to Paying Agents . . 91
SECTION 11.13. No Suspension of Remedies . . . . . . . 91
SECTION 11.14. Trustee's Relation to Senior Indebtedness
of the Company . . . . . . . . . . . 92
ARTICLE XII
Defeasance and Covenant Defeasance . . 92
SECTION 12.01. Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . 92
SECTION 12.02. Defeasance and Discharge . . . . . . . 92
SECTION 12.03. Covenant Defeasance . . . . . . . . . . 93
SECTION 12.04. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . 93
SECTION 12.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . 96
SECTION 12.06. Reinstatement . . . . . . . . . . . . . . 97
ARTICLE XIII
Guarantees . . . . . . . . 97
SECTION 13.01. Guarantee . . . . . . . . . . . . . . . 97
SECTION 13.02. Subrogation . . . . . . . . . . . . . . 98
SECTION 13.03. Execution and Delivery of Guarantees . 99
SECTION 13.04. Agreement to Subordinate . . . . . . . 99
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
FORM OF AMENDED AND RESTATED INDENTURE dated as of November
13, 1992, as amended and restated as of , 199_ (this
"Indenture"), among TRITON ENERGY CORPORATION, a Delaware corporation, as
issuer (the "Company"), __________, a Cayman Islands company, as guarantor
(the "Guarantor"), and CHEMICAL BANK, a banking corporation organized and
existing under the laws of the State of New York, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee are parties to the
Indenture dated as of November 13, 1992 (as amended by the Supplemental
Indenture, dated as of July 1, 1993, the Second Supplemental Indenture, dated
as of August 16, 1993, the Third Supplemental Indenture, dated as of May 12,
1995 and the Fourth Supplemental Indenture, dated as of _______ ___, 1995 (the
"Fourth Supplemental Indenture"));
WHEREAS, the Company has duly authorized the creation of an
issue of its Senior Subordinated Discount Notes due 1997 (hereinafter called
the "Securities"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture;
WHEREAS, the Board of Directors of the Company has adopted a
resolution of its Board of Directors authorizing the Company to enter into
this Indenture;
WHEREAS, the Guarantor desires to make the Guarantees
provided herein;
WHEREAS, the Board of Directors of the Guarantor has adopted
a resolution of its Board of Directors authorizing the Guarantor to enter into
this Indenture;
WHEREAS, the Company has requested the Trustee and the
Trustee has agreed to join in the execution of this Indenture in accordance
with the terms of Section 9.02 of the Indenture, and as contemplated by the
Fourth Supplemental Indenture, and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Company, the Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
Holders from time to time of the Securities as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computations
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States as of the date hereof;
(d) 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; and
(e) the expressions "date of this Indenture", "date hereof",
"date as of which this Indenture is dated" and "date of the 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 November 13, 1992.
Certain terms, used principally in Articles V, VI, X, XI and XII, are
defined in those Articles.
"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.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-registrar.
"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
SEC 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 that 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 governed by Article VIII or (C) which 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.
"Average Quoted Price" means the average of Quoted Prices of
a 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.
"Board of Directors" means either the Board of Directors of
the Company or the Guarantor, as the case may be, or any authorized committee
of either such Board.
"Business Day" means, for any place of payment, each Monday,
Tuesday, Wednesday, Thursday, or Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated by law or
executive order 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 this Indenture except for Redeemable Stock.
"Capitalized Lease Obligation" means, as applied to any
person, any obligation relating to any lease of any property (whether real,
personal or mixed) by that person as lessee which, in conformity with GAAP,
is required tobe 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
immediately vote 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 of the
Guarantor's assets are sold to any person.
"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.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Company Order" means a written request or order signed in
the name of the Company or the Guarantor, as the case may be, by the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be, and delivered to the
Trustee.
"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 Worth" means, as at any date of
determination, the consolidated stockholders' equity of the Guarantor as
determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee in
New York, New York at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
located at 00 Xxxxx Xxxxxx, Xxxx 0000, Xxx Xxxx, Xxx Xxxx 00000.
"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.
"Designated Senior Indebtedness" means (i) all Indebtedness
under the Company's bank agreements that constitutes Senior Indebtedness of
the Company, (ii) Indebtedness under that certain revolving credit facility
contemplated to be entered into by the Company with Xxxxxx Guaranty Trust
Company of New York and certain other lenders, and (iii) any other Senior
Indebtedness of the Company which, at the time of determination, has an
aggregate principal amount outstanding of at least $10,000,000 and is
specifically designated by the Company in the instrument evidencing such
Senior Indebtedness of the Company as "Designated Senior Indebtedness".
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of
1978, codified at Title 11 of the United States Code, as amended from time to
time.
"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 this Indenture.
"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" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books, and the word "majority," used
in connection with the terms "Holder" or "Securityholder", shall signify the
"majority in Principal Amount" whether or not so expressed.
"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 Company).
"Indenture" means this Indenture as originally executed
(including all exhibits thereto) or as it may be amended or supplemented from
time to time by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, including, for all purposes of
this instrument and any such supplemental indenture, the provisions of the TIA
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Intercompany Agreement" means an intercompany agreement
substantially in the form attached as Exhibit C to this Indenture.
"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.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor federal income tax laws.
"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.
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which the
Security is sold as set forth on the face of the Security.
"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.
"Legal Holiday" means for any place of payment, a day which
is not a Business Day at such place of payment.
"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, with respect to any Security, an
amount equal to the excess, if any, of (a) over (b), where (a) equals the
present value of the Principal Amount of such Security, discounted on a
semiannual bond equivalent basis from November 13, 1997 to the Redemption
Date at a per annum interest rate equal to the lower of (x) the Standard Yield
applicable to the Redemption Date for which the determination is being made
plus 100 basis points and (y) the Treasury Yield for such Redemption Date plus
100 basis points, and (b) equals the Issue Price plus the accrued Original
Issue Discount of such Security to the Redemption Date.
"Material Subsidiary" means, at the time of determination,
any Subsidiary or Special Subsidiary of the Guarantor that (a) accounted for
more than 5% 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 5% 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 Guarantor 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.
"Non-payment Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more persons to accelerate
the maturity of any Designated Senior Indebtedness.
"Officers' Certificate" means a certificate signed, in the
case of the Company, by two officers of the Company, and, in the case of the
Guarantor, by two officers of the Guarantor. Each Officers' Certificate
(other than certificates provided pursuant to TIA Section 314(a)(4)) shall
include the statements provided for in TIA Section 314(e).
"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 hereof, 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 a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of
or counsel to the Company, the Guarantor or the Trustee. Each such Opinion of
Counsel shall include the statements provided for in TIA Section 314(e).
"Original Issue Discount" of any Security means the
difference between the Issue Price and the Principal Amount of the Security as
set forth on the face of the Security.
"Paying Agent" means any person authorized by the Company to
pay the Principal Amount, Issue Price, premium (if any), accrued Original
Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale
Offer Price, or interest (if any), on any Securities on behalf of the Company.
"Payment Default" means any default in the payment of
principal, premium, if any, or interest, if any, on any Designated Senior
Indebtedness beyond any applicable grace period with respect thereto.
"Permitted Indebtedness" means (i) the Securities and the
Guarantees; (ii) Indebtedness of the Company or any of its Subsidiaries or
Special Subsidiaries outstanding on December 15, 1993; (iii) obligations
pursuant to Interest Rate Agreements or Currency Agreements; (iv) with respect
to any assets acquired or constructed after the date hereof (including
unimproved real property acquired prior to the date hereof), Indebtedness
under Capitalized Lease Obligations and purchase money mortgages; (v)
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; (vi) loans or advances from a Subsidiary to the Guarantor or
another Subsidiary, provided that the obligation of the obligor of such
Indebtedness is subject to an Intercompany Agreement; (vii) 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) guaranties 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 Intercompany Agreement, (II) such guarantee is
subordinated to the Securities and the Guarantees, and the agreement governing
the guarantee includes subordination provisions substantially similar to those
set forth in Article XI and Article XIII to the same extent as if the
Securities were Senior Indebtedness of the Company and the Guarantees were
Senior Indebtedness of the Guarantor and (III) such incurrence of the
guarantee is otherwise permitted under Section 10.08; (viii) 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; (ix)
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 Securities and the Guarantees, and the agreement governing such
Indebtedness includes subordination provisions substantially similar to those
set forth in Article XI and Article XIII to the same extent as if the
Securities were Senior Indebtedness of the Company and the Guarantees were
Senior Indebtedness of the Guarantor and (III) such incurrence of
Indebtednessis otherwise permitted under Section 10.08; and (x) 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 herein, 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 or replaced is
Indebtedness of the Guarantor, such renewal, extension, substitution,
refinancing or replacement shall be Indebtedness of the Guarantor; and (xi)
additional Indebtedness (including Acquired Indebtedness) having a principal
amount outstanding at issuance or at the date of assumption not to exceed
$100,000,000, 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
$20,000,000 outstanding at any time.
"Person" means any individual, corporation, partnership,
Joint Venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof.
"Preferred Stock" means, with respect to any person, any and
all shares, interests, participations or other equivalents (however
designated) of such person's preferred or preference stock, whether now
outstanding or issued after the date hereof, 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" or "Principal Amount" of a Security means the
principal amount payable at Stated Maturity as set forth on the face of the
Security.
"Quoted Price" 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 a security on the New York Stock Exchange
Composite Tape or such other international, national or regional stock
exchange upon which the common stock is listed, or, if the shares of common
stock or comparable common equity stock are 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 Guarantor shall be entitled to determine the Quoted Price on
the basis of such quotations as it considers appropriate.
"Redeemable Stock" means any equity security that by its
terms or otherwise is required to be redeemed prior to the Stated Maturity of
the Securities, or is redeemable at the option of the holder thereof at any
time prior to the Stated Maturity of the Securities.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" means an office or agency of the Company where
Securities may be presented for registration of transfer or for exchange.
"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
and 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 a Special
Subsidiary shall be deemed a Restricted Subsidiary at such time as it becomes
at least 90% owned in accordance with this definition.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture.
"Senior Indebtedness of the Company" 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 Company (other than as otherwise provided in this
definition), whether outstanding on the date of this 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 Securities, and (ii) Indebtedness
outstanding or hereafter incurred under the Company's bank agreements.
Notwithstanding the foregoing, Senior Indebtedness of the Company 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 Company to a Subsidiary or any other Affiliate of
the Company or any of such Affiliate's subsidiaries, (b) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of the
Company,(c) Indebtedness that, when incurred, was without recourse to the
Company, (d) any liability for federal, state, local or other taxes owed or
owing by the Company, (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 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 this 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 the Guarantees and (ii) Indebtedness
outstanding or hereafter incurred 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,(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.
"Special Subsidiaries" means Triton Canada Resources Ltd.,
Triton Europe p.l.c., Crusader Limited, New Zealand Petroleum Company Limited
and Aero Services International, Inc.
"Standard Yield" means 5.93%, if a Security is redeemed on or
before November 1, 1993, 5.39%, if redeemed after November 1, 1993 and on or
before November 1, 1994, 4.84%, if redeemed after November 1, 1994 and on or
before November 1, 1995, 4.37%, if redeemed after November 1, 1995 and on or
before November 1, 1996, and 3.49%, if redeemed after November 1, 1996 and
prior to the Stated Maturity.
"Stated Maturity," when used with respect to any Security,
means the date specified in such Security as the fixed date on which an amount
equal to the Principal of such Security is due and payable.
"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 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.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended (15 U.S. Code Sections 77aaa-77bbb), as in effect on the
date this Indenture was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "TIA" or "Trust
Indenture Act" shall mean, to the extent required by such amendment, the Trust
Indenture Act of 1939, as so amended.
"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 Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar data)) most
nearly equal to the then remaining average life of the Securities; provided,
that if the average life of the Securities 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 the average life of the Securities 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.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in accordance with
the provisions of this Indenture, and thereafter means such successor.
"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 Company 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.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.06(a)
"Asset Sale Amount" . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Offer" . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Offer Date" . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Offer Notice" . . . . . . . . . . . . . . . . . . 10.16(e)
"Asset Sale Offer Price" . . . . . . . . . . . . . . . . . . . 10.16(c)
"Asset Sale Purchase Date" . . . . . . . . . . . . . . . . . . 10.17(d)
"Asset Sale Purchase Notice" . . . . . . . . . . . . . . . . . 10.16(f)
"Change in Control Purchase Notice" . . . . . . . . . . . . . . 10.13(c)
"Change in Control Purchase Date" . . . . . . . . . . . . . . . 10.13(a)
"Change in Control Purchase Price" . . . . . . . . . . . . . . 10.13(a)
"Covenant defeasance" . . . . . . . . . . . . . . . . . . . . . . .12.03
"Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . .12.02
"Deficiency" . . . . . . . . . . . . . . . . . . . . . . . . . 10.16(c)
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . 5.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . 10.16(b)
"Payment Blockage Period" . . . . . . . . . . . . . . . . . . . 11.03(b)
"Permitted Junior Securities" . . . . . . . . . . . . . . . 11.02(c)(1)
"Restricted Payments" . . . . . . . . . . . . . . . . . . . . . . 10.08
"Security Register" . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . . .12.04
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Compliance Certificates and Opinions. Upon
any application or request by the Company or the Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company or the
Guarantor, as the case may be, shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act and an Officers'
Certificate stating that all conditions precedent, if any, 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, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
SECTION 1.05. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such person, or that
they be so certified or covered by only one document, but one such person may
certify or give an opinion with respect to some matters and one or more other
such persons as to other matters, and any such person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company or the Guarantor, as the case may be, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
SECTION 1.06. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company or the Guarantor. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
person of a Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of
the Trustee, the Company and the Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, the Company or the Guarantor in reliance
thereon, whether or not notation of such action is made upon such Security.
(d) The ownership of Securities shall be proved by the
Security Register.
SECTION 1.07. Notices, etc. to Trustee, Company and
Guarantor. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company, addressed to the attention of its Treasurer, which address is 0000 X.
Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, or at any other
address previously furnished in writing to the Trustee by the Company, or
(3) the Guarantor by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Guarantor, addressed to the attention of its Treasurer, which address is
________, or at any other address previously furnished in writing to the
Trustee by the Guarantor.
SECTION 1.08. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where
this Indenture provides for notice to Holders of Securities of any event, such
notice shall be sufficiently given to Holders of Securities if in writing and
mailed, first-class postage prepaid, to each Holder of a Security affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.
In any case where notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities given as provided
herein. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided. In the case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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 of Securities 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.
SECTION 1.09. Language of Notices. Any request, demand,
authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that,
if the Company so elects, any published notice may be in an official language
of the country of publication.
SECTION 1.10. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with any duties under any
required provision of the Trust Indenture Act imposed hereon by Section 318(c)
thereof, such required provision shall control.
SECTION 1.11. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.12. Successors and Assigns. All covenants and
agreements in this Indenture by the Company or the Guarantor shall bind the
successors and assigns of the Company or the Guarantor, respectively, whether
so expressed or not.
SECTION 1.13. Separability Clause. In case any provision in
this Indenture or any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.14. Benefits of Indenture. Nothing in this
Indenture or any Security express or implied, shall give to any person, other
than the parties hereto, any Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.15. Governing Law. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York as applied to agreements made or instruments entered
into and, in each case, performed in said state, without regard to principles
of conflicts of laws.
SECTION 1.16. 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
Securities 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 1.16 shall limit the right of
the Holders of the Securities 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 1.17. Legal Holidays. In any case where any
Redemption Date, Change in Control Purchase Date, Asset Sale Purchase Date,
date for payment of interest on overdue amounts or Stated Maturity shall be a
Legal Holiday at any place of payment, then (notwithstanding any other
provision of this Indenture, any Security other than a provision in any
Security that specifically states that such provision shall apply in lieu of
this Section) payment need not be made at such place of payment on such date,
but may be made on the next succeeding day that is a Business Day at such
place of payment with the same force and effect as if made on the Redemption
Date, Change in Control Purchase Date, Asset Sale Purchase Date, date for
payment of interest on overdue amounts or Stated Maturity, and such time for
the period from and after such Redemption Date, Change in Control Purchase
Date, Asset Sale Purchase Date, date for payment of interest on overdue
amounts or Stated Maturity.
ARTICLE II
The Securities
SECTION 2.01. Forms Generally. The Securities and the
Trustee's certificate of authentication shall be in substantially the forms
set forth in Exhibit A, which is a part of this Indenture, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
The Guarantees to be endorsed on the Securities shall be in
substantially the forms set forth in Exhibit B, which is a part of this
Indenture, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Guarantees as evidenced by their execution of the
Guarantees.
The terms and provisions contained in the form of the
Securities and Guarantees endorsed thereon, annexed hereto as Exhibits A and
B, shall constitute, and are hereby expressly made, a part of this Indenture.
To the extent applicable, the Company, the Guarantor and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The definitive Securities and Guarantees shall be printed,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities and Guarantees, as evidenced by their
execution of such Securities and Guarantees.
SECTION 2.02. Execution, Authentication, Delivery and
Dating. Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries and the Guarantees shall
be executed on behalf of the Guarantor by its Chairman of the Board, one of
its Vice Chairmen, its President, its Treasurer or one of its Vice Presidents
under its corporate seal reproduced thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on
the Securities or the Guarantees, as applicable, may be manual or facsimile.
Securities or Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company or the Guarantor, as applicable, shall bind the Company or the
Guarantor, as applicable, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities having endorsed thereon Guarantees or did not hold such
offices at the date of such Securities or Guarantees.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company having endorsed thereon Guarantees executed by the Guarantor to the
Trustee for authentication and, provided that a resolution from the Board of
Directors of the Company, a resolution from the Board of Directors of the
Guarantor, Officers' Certificate or supplemental indenture or indentures with
respect to such Securities and Guarantees and a Company Order for the
authentication and delivery of such Securities and Guarantees endorsed thereon
has been delivered to the Trustee, the Trustee in accordance with the Company
Order and subject to the provisions hereof and of such Securities and
Guarantees shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided in the form of Security attached hereto as Exhibit A executed by
or on behalf of the Trustee by the manual signature of one of its authorized
officers. All Securities outstanding as of _______, 199__ shall be deemed to
have endorsed thereon a Guarantee in the form of the Guarantee attached hereto
as Exhibit B. Such certificate upon any Security shall be conclusive
evidence,and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
In case the Company or the Guarantor, pursuant to Article
VIII, shall be consolidated or merged with or into any other person or shall
convey, transfer, lease or otherwise dispose of all or substantially all of
its properties and assets to any person and the successor person resulting
from such consolidation, or surviving such merger, or into which the Company
or the Guarantor, as the case may be, shall have been merged, or the successor
person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article VIII, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease
or other disposition may, from time to time, at the request of the successor
person, be exchanged for other securities executed in the name of the
successor person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like Principal Amount; and the Trustee,
upon Company Order of the successor person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of
a successor person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor person, at the
option of any Holder but without expense to such Holder, shall provide for the
exchange of all Securities at the time outstanding held by such Holder for
Securities authenticated and delivered in such new name.
SECTION 2.03. Temporary Securities. Pending the preparation
of definitive Securities, the Company may execute and deliver to the Trustee
and, upon Company Order, the Trustee shall authenticate and deliver, in the
manner provided in Section 2.02, temporary Securities in lieu thereof which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, having
endorsed thereon Guarantees duly executed by the Guarantor, substantially in
the form of the definitive Guarantees, and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities and the officers of the Guarantor executing such
Guarantees may determine, as conclusively evidenced by their execution of such
Securities and Guarantees, respectively.
If temporary Securities are issued, the Company shall cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at the office or agency of the Company designated
pursuant to Section 10.02 without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor, a like Principal Amount of definitive Securities of
authorized denominations containing identical terms and provisions, having
endorsed thereon Guarantees executed by the Guarantor. Unless otherwise
provided in or pursuant to this Indenture, until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 2.04. Registration, Transfer and Exchange. With
respect to the Securities, the Company shall cause to be kept a register (the
"Security Register") at the Corporate Trust Office which, subject to such
reasonable regulations as the Trustee may prescribe, the Company shall provide
for the registration of the Securities and of transfers of the Securities.
The Trustee is hereby initially appointed Registrar for the purpose of
registering Securities and transfers of Securities as herein provided, subject
to Section 10.02. In the event that the Trustee shall cease to be Registrar
with respect to the Securities, it shall have the right to examine the
Security Register at all reasonable times.
Upon surrender for registration of transfer of any Security
at any office or agency of the Company designated pursuant to Section 10.02,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities denominated as authorized in or pursuant to this Indenture, of a
like aggregate Principal Amount, having endorsed thereon a Guarantee executed
by the Guarantor bearing a number not contemporaneously outstanding and
containing identical terms and provisions.
At the option of the Holder, Securities may be exchanged for
other Securities containing identical terms and provisions, in any authorized
denominations, and of a like aggregate Principal Amount, each such Security
having endorsed thereon a Guarantee executed by the Guarantor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive, each Security having endorsed thereon a
Guarantee executed by the Guarantor.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company
evidencing the same debt and entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company 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 or exchange of
Securities, other than exchanges pursuant to Section 2.02, 2.03, this 2.04, or
9.06 not involving any transfer.
Except as otherwise provided in or pursuant to this
Indenture, the Company shall not be required (i) to issue, register the
transfer of or exchange any Securities during a period beginning at the
opening of business 15 days before the day of the selection for redemption of
Securities under Section 3.03 and ending at the close of business on the day
of such selection, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 2.05. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee, subject
to the provisions of this Section 2.05, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security
containing identical terms and of like Principal Amount, having endorsed
thereon a Guarantee executed by the Guarantor and bearing a number not
contemporaneously outstanding.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security, a new
Security containing identical terms and of like principal amount, having
endorsed thereon a Guarantee executed by the Guarantor and bearing a number
not contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section
2.05, in case any mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute a separate obligation
of the Company and of the Guarantor with respect to the Guarantee 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 this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture, with respect to the Securities shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.06. Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the person in whose name such Security is registered in the
Security Register as the owner of such Security for the purpose of receiving
payment of the Principal Amount, premium (if any), any Issue Price, accrued
Original Issue Discount, Redemption Price, Change in Control Purchase Price,
Asset Sale Offer Price, interest (if any) and any other required payment
hereunder with respect to such Security and for all other purposes whatsoever,
whether or not any payment with respect to such Security shall be overdue, and
neither the Company, nor the Guarantor, or the Trustee or any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 2.07. Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee,
and any such Securities, as well as Securities surrendered directly to the
Trustee for any such purpose, shall be canceled promptly by the Trustee. The
Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and all Securities so delivered shall be canceled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order or, in the absence of such
Company Order, in accordance with the Trustee's standard procedures.
SECTION 2.08. Computation of Original Issue Discount.
Except as otherwise provided in or pursuant to this Indenture, Original Issue
Discount on the Securities shall accrue at 12.50% per annum, on a semi-annual
bond equivalent basis using a 360-day year composed of twelve 30-day months,
commencing on the date of this Indenture.
ARTICLE III
Redemption of Securities
SECTION 3.01. Right of Redemption. The Securities may be
redeemed, at the election of the Company, as a whole or from time to time in
part, at the Redemption Prices specified in the form of Security.
SECTION 3.02. Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 3.03. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 3.01
shall be evidenced by a resolution from the Board of Directors, a certified
copy of which is delivered to the Trustee. In case of any redemption at the
election of the Company, the Company 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 Securities to be redeemed.
SECTION 3.04. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed, the particular
Securities 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 Securities 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 in a minimum amounts of at
least $20,000,000 or otherwise pursuant to the terms of this Indenture.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption and, in the
case of any Securities 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 Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the aggregate Principal Amount of such Security which has
been or is to be redeemed.
SECTION 3.05. 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
Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Securities are to be
redeemed, the identification (and, in the case of a Security to be redeemed in
part, the aggregate Principal Amount) of the particular Securities to be
redeemed;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and that
unless the Company shall default in payment of the Redemption Price, accrued
Original Issue Discount thereon shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(g) the CUSIP number, if any, relating to such Securities;
and
(h) in the case of a Security to be redeemed in part, the
aggregate Principal Amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, new Security or Securities in
the aggregate Principal Amount equal to the unredeemed portion thereof will be
issued.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at its request, by
the Trustee in the name and at the expense of the Company.
SECTION 3.06. Deposit of Redemption Price. On or prior to
any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company 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 Securities or portions
thereof which are to be redeemed on that date.
SECTION 3.07. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
accrue Original Issue Discount. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Issue Price thereof and premium (if
any), thereon shall, until paid, accrue Original Issue Discount from the
Redemption Date at the rate set forth in Section 2.08.
SECTION 3.08. Securities Redeemed in Part. Any Security
that is to be redeemed only in part shall be surrendered at the office or
agency of the Company maintained for such purpose pursuant to Section 10.02
(with, if the Company, the Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company, the Registrar or the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, 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 Security so surrendered.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Discharge of Liability on Securities. When
(i) the Company or the Guarantor delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.05) for
cancellation or (ii) all outstanding Securities have become due and payable
and the Company or the Guarantor deposits with the Trustee cash sufficient to
pay at Stated Maturity the Principal Amount of all outstanding Securities
(other than Securities replaced pursuant to Section 2.05), and if in either
case the Company or the Guarantor pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Sections 4.02 and 6.05, cease
to be of further effect. The Trustee shall, at the cost and expense of the
Company, join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officer's Certificate and Opinion of Counsel, each
stating that all conditions precedent to the satisfaction and discharge of
this Indenture have been complied with.
SECTION 4.02. Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company, upon written request any money held
by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years; provided, however, that the Trustee or such
Paying Agent, before being required to make any such return, may at the
expense of the Company cause to be published once in a newspaper of general
circulation in the City of New York or mail to each such Holder notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing,
any unclaimed money then remaining will be returned to the Company. After
return to the Company, Holders entitled to the money must look only to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person.
ARTICLE V
Defaults and Remedies
SECTION 5.01. Events of Default. "Event of Default",
wherever used herein, 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 XI or be voluntary or involuntary or
be effected by the operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price or any other required payment under
this Indenture when the same becomes due and payable as herein provided,
whether at its Stated Maturity, upon redemption, upon declaration of
acceleration, when due for purchase by the Company or otherwise, whether or
not such payment shall be prohibited by this Indenture; or
(b) default in the performance, or breach, of any covenant
or agreement of the Company or the Guarantor hereunder (other than a default
in the performance, or breach, of a covenant or agreement that is specifically
dealt with elsewhere in this Section), 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 Company and the Guarantor by the Trustee or to the
Company, the Guarantor and the Trustee by the Holders of at least 25% in
Principal Amount of the outstanding Securities a written notice specifying
such default or breach and stating that such notice is a "Notice of Default"
hereunder; or
(c) (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 Company, 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 Company 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
(d) final judgments or orders rendered against the Company,
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 Company 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
(e) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Company, 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 Company as of the date of this Indenture) in an involuntary case or
proceeding under, in the case of the Company or any other Material Subsidiary,
the Federal 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 other similar law of
the Cayman Islands, or (ii) adjudging the Company, 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 Company, the
Guarantor or any other such Material Subsidiary under, in the case of the
Company or any other Material Subsidiary, the Federal Bankruptcy Code or any
other applicable Federal or state law, or, in the case of the Guarantor, any
applicable bankruptcy, insolvency, reorganization or other similar law of the
Cayman Islands; or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, 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
(f) the institution by the Company, 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 Company as
of the date of this Indenture) of a voluntary case or proceeding under, in the
case of the Company or any other Material Subsidiary, the Federal Bankruptcy
Code or any other applicable Federal or state law, or, in the case of the
Guarantor, any applicable bankruptcy, insolvency, reorganization 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 Company, the
Guarantor or any other such Material Subsidiary to the entry of a decree or
order for relief in respect of the Company, the Guarantor or any other such
Material Subsidiary in any involuntary case or proceeding under, in the case
of the Company or any other Material Subsidiary, the Federal Bankruptcy Code
or any other applicable Federal or state law, or, in the case of the
Guarantor, any applicable bankruptcy, insolvency, reorganization or other
similar law of the Cayman Islands or to the institution of bankruptcy or
insolvency proceedings against the Company, the Guarantor or any other such
Material Subsidiary, or the filing by the Company, the Guarantor or any other
such Material Subsidiary of a petition or answer or consent seeking
reorganization or relief under, in the case of the Company or any other
Material Subsidiary, the Federal Bankruptcy Code or any other applicable
Federal or state law, or, in the case of the Guarantor, any applicable
bankruptcy, insolvency, reorganization 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 any of the
Company, 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 Company, the Guarantor or any other such Material Subsidiary in
furtherance of any such action; or
(g) default by the Company or the Guarantor in the
performance or breach of the terms of Article VIII.
Each of the Company 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 5.01, 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 (b) or clause (c), its status and what action
the Company or the Guarantor is taking or proposes to take with respect
thereto.
SECTION 5.02. Acceleration of Maturity; Rescission. If an
Event of Default with respect to the Securities (other than an Event of
Default specified in Section 5.01(e) or (f)) occurs and is continuing, the
Trustee or the Holders of at least a 25% in aggregate Principal Amount of the
Securities then outstanding, by written notice to the Company 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 Issue Price and
accrued Original Issue Discount, and premium (if any), 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 Company and
the Guarantor of such written notice given hereunder. If an Event of Default
specified in Section 5.01(e) or 5.01(f) occurs and is continuing, then the
Issue Price and accrued Original Issue Discount on all of the Securities then
outstanding 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 Securities outstanding, by written notice to
the Company, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company 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 6.05 and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(ii) the Issue Price, premium (if any), and accrued
Original Issue Discount on any Securities 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 Securities); and
(b) the rescission would not conflict with any judgment or
and if all existing Events of Default, other than the non-payment of the Issue
Price and accrued Original Issue Discount 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 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if an Event of Default
described in Section 5.01(a) occurs and is continuing, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities, 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 Securities; 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 Company 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 Company, the Guarantor or any other obligor upon
the Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or
any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to the Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities 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 Securities or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
SECTION 5.04. 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 Company, the Guarantor or any other obligor upon
the Securities or the property of the Company, the Guarantor or such other
obligor or their creditors, the Trustee (irrespective of whether the Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price,
interest (if any), or any other payment required to be made under this
Indenture in connection with the Securities 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 Company 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 Securities, of the Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, interest (if any), or any
other payment required 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 or counsel) and of the
Holders of Securities 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 Securities 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 Securities, 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 6.05.
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 Security any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder of a
Security in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims without Possession
of Securities. All rights of action and claims under this Indenture or any of
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities 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
Security in respect of which such judgment has been recovered.
SECTION 5.06. 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 Securities 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 6.05;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for the Principal Amount, premium (if any), Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price, interest (if any), or any other payment
required 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 Securities;
THIRD: The balance, if any, to the Company.
SECTION 5.07. Limitations on Suits. No Holder of any
Securities 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 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 Securities;
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 Security to affect, disturb or prejudice
the rights of any other Holders of Securities, 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 5.08. Unconditional Right of Holders to Receive
Payment. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the Amount, premium (if any), Issue Price, accrued Original
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, interest (if any), or any other required payment under this Indenture
with respect to such Security, on the respective due dates therefor specified
in such Security (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 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security 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 Company, 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 2.05, no right or remedy herein conferred upon
or reserved to the Trustee or to each and every Holder of a Security 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 Security 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 or by law to the
Trustee or to any Holder of a Security 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 Securities. The Holders
of a majority in aggregate Principal Amount of the outstanding Securities
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 Securities, 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
Securities, by notice to the Trustee (and without notice to any other Holder)
on behalf of the Holders of all the Securities may waive any past Default
hereunder with respect to such Securities and its consequences, except
(a) an Event of Default described in Section 5.01(a), or
(b) a Default in respect of a covenant or provision that
under Section 9.02 cannot be modified or amended without the consent of the
Holder of each outstanding Security 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 Company
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 Company 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.
ARTICLE VI
Trustee
SECTION 6.01. Rights of Trustee. Subject to TIA Section
315(a) through (d):
(a) The Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within
its rights or powers, provided that the Trustee's conduct does not constitute
negligence or bad faith.
(e) The Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Securityholders pursuant to this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
(g) 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, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company or the Guarantor, personally or by agent or attorney.
(h) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Securities unless either (1) a
responsible officer of the Trustee assigned to the Corporate Trust Department
of the Trustee (or any successor division or department of the Trustee) shall
have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the
Trustee by the Company or any other obligor on the Securities or by any Holder
of the Securities.
(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 6.02. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, the Guarantor or their
respective Affiliates with the same rights it would have if it were not the
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to TIA Sections 310(b) and 311.
SECTION 6.03. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the
Securities or the Guarantees endorsed thereon. It shall not be accountable
for the Company's or the Guarantor's use of the proceeds from the Securities
and it shall not be responsible for any statement in the Securities or the
Guarantees endorsed thereon other than its certificate of authentication.
SECTION 6.04. Notice of Default. If a Default or an Event
of Default occurs and is continuing with respect to the Securities and if it
is known to the Trustee, the Trustee shall mail to each Holder of Securities
notice of the Default or Event of Default within 30 days after it occurs,
unless such Default or Event of Default has been cured.
SECTION 6.05. Compensation and Indemnity. The Company and
the Guarantor shall pay to the Trustee such compensation as shall be agreed
upon in writing for its services. The Company and the Guarantor shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
and advances incurred or made by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company and the Guarantor shall, jointly and severally,
indemnify the Trustee for, and hold it harmless against, any loss or liability
or expense incurred by it without negligence or bad faith on its part, in
connection with the administration of this Indenture and its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company and the Guarantor
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company and the Guarantor shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company or the Guarantor shall pay reasonable fees and expenses of
such counsel. Neither the Company nor the Guarantor need pay for any
settlements made without its consent. Neither the Company nor the Guarantor
need reimburse any expense or indemnify against any loss or liability incurred
by the Trustee through negligence or bad faith.
To secure the Company's and the Guarantor's payment
obligations in this Section 6.05, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay the
Principal Amount, premium (if any), Issue Price, accrued Original Issue
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, interest (if any), and any other payment required to be made hereunder,
as the case may be, on particular Securities.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Section 5.01(e) or (f), the
expenses and the compensation for the services will be intended to constitute
expenses of administration under any applicable Federal Bankruptcy Law.
The provisions of this Section 6.05 shall survive the
resignation or removal of the Trustee and the termination of this Indenture.
SECTION 6.06. Replacement of Trustee. A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 6.06. The Holders of a majority in aggregate
Principal Amount of the Securities at the time outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The
Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.08;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes legally incapable of
acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall promptly appoint,
by resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee to the Company and the Guarantor.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail
a notice of its succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 6.05.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, the Guarantor or the Holders of a majority in aggregate Principal
Amount of the Securities at the time outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.08, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
SECTION 6.07. Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee.
SECTION 6.08. Eligibility; Disqualification. This Indenture
shall always have a Trustee who satisfies the requirements of TIA Section
310(a)(1). 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 TIA Section 310(b) regarding
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 6.09. Money Held in Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may
agree in writing with the Company or the Guarantor. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 6.10. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
Holders' Lists and Reports by Trustee,
Company and the Guarantor
SECTION 7.01. Company and Guarantor to Furnish Trustee Names
and Addresses of Holders. In accordance with Section 312(a) of the Trust
Indenture Act, the Company and the Guarantor shall furnish or cause to be
furnished to the Trustee
(a) semiannually with respect to the Securities on April 1
and November 1 of each year, or not more than 15 days after each such date, a
list, in each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or the Guarantor of
any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Registrar, no such list
shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to
Holders. The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor, the Trustee, any Paying Agent or any Registrar 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
Section 312 of the Trust Indenture Act, 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
Section 312(b)of the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing
with the first May 15 following the first issuance of Securities, the Trustee
shall transmit, pursuant to Section 313(a) of the Trust Indenture Act, a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
SECTION 7.04. Reports by Company and the Guarantor. The
Company and the Guarantor, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company
or the Guarantor, as the case may be, is required to file the same with the
SEC, 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 SEC may
from time to time by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, may be required to file with the SEC pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company or the
Guarantor is not required to file information, documents or reports pursuant
to either of said Sections, then the Company or the Guarantor, as the case may
be, shall file with the Trustee, the SEC and send to each Holder, in
accordance with rules and regulations prescribed from time to time by the SEC,
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 security listed and registered on a national securities exchange as may be
prescribed from time to time by such rules and regulations;
(2) file with the Trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Company
or the Guarantor, or both, with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company or the Guarantor pursuant to paragraphs
(1) and (2) of this Section as may be required by the TIA or the rules and
regulations prescribed from time to time by the SEC.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company or Guarantor May Consolidate, Etc.,
Only on Certain Terms. Except as set forth in the proviso below, nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company or the Guarantor with or into any other
person or persons (whether or not affiliated with the Company or the
Guarantor), or successive consolidations or mergers in which the Company, the
Guarantor or their respective successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of the property of
the Company or the Guarantor as an entirety or substantially as an entirety,
to any other person (whether or not affiliated with the Company or the
Guarantor); provided, however, that:
(1) in case the Company or the Guarantor shall consolidate
with or merge into another person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, the entity formed by
such consolidation or into which the Company or the Guarantor is merged or the
person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor substantially as an
entirety shall be, in the case of the Company, a corporation organized and
existing 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, and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by the successor person and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture the obligations of the Guarantor under the
Guarantees and this indenture, as the case may be;
(2) immediately after giving effect to such transaction, no
event which, after notice or lapse of time, would become a Default or Event of
Default, shall have occurred and be continuing;
(3) in the case of the Guarantor, the Guarantor or the
Successor person as the case may be, would have a pro forma liquidated Net
Worth after giving effect to the transaction at least equal to the
Consolidated Net Worth of the Guarantor prior to the transaction;
(4) except in the case of a transaction involving a Special
Subsidiary, the Guarantor or the successor person, as the case may be, could
incur an additional $1.00 of Indebtedness pursuant to Section 10.07 (other
than Permitted Indebtedness) after giving effect to the transaction; and
(5) either the Company, the Guarantor or the successor
person shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.02. Successor Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer or lease of the
properties and assets of the Company or the Guarantor substantially as an
entirety to any person in accordance with Section 8.01, the successor person
formed by such consolidation or into which the Company or the Guarantor is
merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture, as the case may be, with the
same effect as if such successor person had been named as the Company or the
Guarantor, as the case may be, herein; and thereafter, except in the case of a
lease to another person, the predecessor person shall be released from all
obligations and covenants under this Indenture, the Securities and the
Guarantees.
ARTICLE IX
Amendments
SECTION 9.01. Supplemental Indentures without Consent of
Holders. Without the consent of any Holders of Securities, the Company, the
Guarantor (when authorized by or pursuant to a resolution from its respective
Board of Directors, a certified copy of which has been delivered to the
Trustee) and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to comply with Article VIII or Section 10.15; or
(2) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
(3) to evidence the succession of another person to the
Company or the Guarantor and the assumption by such successor of the covenants
of the Company herein and in the Securities or of the covenants of the
Guarantor herein, in the Securities and the Guarantees endorsed thereon; or
(4) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect the
interests of the Holders of Securities in any material respect; or
(5) to make any other change that does not materially
adversely affect the interests of the Holders of any Securities then
outstanding.
SECTION 9.02. Supplemental Indentures with Consent of
Holders. With the consent of Holders of a majority of the aggregate Principal
Amount of the outstanding Securities, the Company, the Guarantor (when
authorized by or pursuant to a resolution from its respective Board of
Directors, a certified copy of which has been delivered to the Trustee) and
the Trustee may enter into an Indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities under this Indenture; provided,
however, that no such supplemental indenture, without the consent of the
Holder of each outstanding Security affected thereby, shall
(1) make any change to the Principal Amount of Securities
whose Holders must consent to an amendment, or
(2) reduce the Principal Amount, or change the Stated
Maturity, of any Security, or
(3) make any change to the manner or rate of accrual in
connection with the Original Issue Discount with respect to any Security, or
reduce the rate of interest in paragraph 1 of the Securities or change the
time for payment of the Principal Amount or other interest, if any, on any
Security, or
(4) reduce the Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price or any other required payment under this
Indenture, or
(5) reduce the percentage in Principal Amount of the
outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
Defaults hereunder and their consequences) provided for in this Indenture, or
(6) modify any of the provisions of this Section, or Section
5.08 or Section 5.13, or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby, except with respect to this
Section to increase any such percentage, or
(7) make any change that adversely affects the right to
require the Company to redeem or purchase the Securities in accordance with
the terms thereof and this Indenture or the Guarantor to guarantee the payment
of the Securities in accordance with the terms of the Guarantees and this
Indenture.
It shall not be necessary for any act of Holders of
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such act shall approve
the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. As a
condition to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but 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.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of a
Security theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Guarantor
shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee, the Company and the Guarantor, to any such supplemental
indenture may be prepared and executed by the Company, having Guarantees
endorsed thereon executed by the Guarantor and authenticated and delivered by
the Trustee in exchange for outstanding Securities.
ARTICLE X
Covenants
SECTION 10.01. Payment of Securities. The Company shall
duly and punctually pay the Principal Amount, premium (if any), Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price and interest (if any), in accordance with the
terms of the Securities and this Indenture.
The Company shall pay interest on overdue amounts at the rate
set forth in paragraph 1 of the Securities as set forth in the form of
Security attached hereto as Exhibit A, and it shall pay interest on overdue
interest at the same rate compounded semiannually (to the extent that the
payment of such interest shall be legally enforceable), which interest on
overdue interest shall accrue from the date such amounts became overdue.
SECTION 10.02. Maintenance of Office or Agency. The Company
and the Guarantor will maintain in the Borough of Manhattan, New York, New
York an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company or the Guarantor in respect of such Securities,
the Guarantees and this Indenture may be served. The Company and the
Guarantor will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company or the Guarantor shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee and each of the Company and the
Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices
and demands.
The Company and the Guarantor may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company or the Guarantor of their
respective obligations to maintain an office or agency in the Borough of
Manhattan, New York, New York for such purposes. The Company and the
Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company and the Guarantor hereby initially designate the
Corporate Trust Office of the Trustee, located in the Borough of Manhattan,
New York, New York as such office of the Company and the Guarantor.
SECTION 10.03. Money for Security Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent, the
Company will, on or before each due date of payments in respect of any
Security, segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such payment when so becoming due until such
sum shall be paid to such persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
If the Company is acting as Paying Agent, the Company will on
or before the due date of payment in respect of any Security deposit with a
Paying Agent a sum in same day funds (or New York Clearing House funds if such
deposit is made prior to the date on which such deposit is required to be
made) sufficient to make such payment when so becoming due, such sum to be
held in trust for the benefit of the persons entitled to such payment and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company
will cause each Paying Agent other than the Trustee 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, that such Paying Agent
will:
(a) hold all sums held by it for the payment in respect of
any such Security in trust for the benefit of the persons entitled thereto
until such sums shall be paid to such persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any Default by the Company
(or any other obligor upon the Securities) in the payment in respect of any
such Security;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights and
obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
SECTION 10.04. Corporate Existence. Subject to Article VIII
and Section 10.13, each of the Guarantor and the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Material Subsidiary that is or would be a
Subsidiary without regard to the exclusion of Special Subsidiaries from the
definition of Subsidiary set forth in the last proviso therein, in each case
in accordance with the organizational documents of the Guarantor, the Company
and each such Material Subsidiary, as the case may be, and the rights (charter
and statutory), licenses and franchises of the Guarantor, the Company and each
such Material Subsidiary, as the case may be; provided, however, that neither
the Guarantor nor the Company shall be required to preserve any such right,
license, franchise or corporate existence of a Material Subsidiary if the
preservation thereof is no longer desirable in the conduct of the business of
the Guarantor and its Subsidiaries taken as a whole and the loss thereof is
not adverse in any material respect to the Holders of Securities.
SECTION 10.05. 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 10.06. Maintenance of Properties and Insurance. The
Guarantor will cause all material properties owned by or leased to it or any
Material Subsidiary of the Guarantor and used or useful in the conduct of its
business or the business of such Material Subsidiary that is or would be a
Subsidiary without regard to the exclusion of Special Subsidiaries from the
definition of Subsidiary set forth in the last proviso therein to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Guarantor may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 10.06 shall prevent the
Guarantor or any Material Subsidiary of the Guarantor from discontinuing the
use, operation ormaintenance of any of such properties or disposing of any of
them, if such discontinuance or disposal is, in the judgment of the Board of
Directors of the Guarantor or of the board of directors of the Material
Subsidiary concerned, or of an officer (or other agent employed by the
Guarantor or any of its Material Subsidiaries) of the Guarantor or such
Material Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Guarantor or any Material
Subsidiary of the Guarantor, and if such discontinuance or disposal is not
adverse in any material respect to the Holders of Securities.
The Guarantor will provide or cause to be provided for itself
and each of its Material Subsidiaries that is or would be a Subsidiary without
regard to the exclusion of Special Subsidiaries from the definitions of
Subsidiary set forth in the last proviso therein, insurance (including
appropriate self-insurance) against loss or damage of the kinds customarily
insured against by corporations similarly situated and owning like properties,
including, but not limited to, products liability insurance and public
liability insurance with reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts with such deductibles and by such methods as shall be customary for
corporations similarly situated in the industry.
SECTION 10.07. 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
or Acquired Indebtedness (other than Senior Indebtedness of the Guarantor and
Senior Indebtedness of the Company) has no sinking fund or amortization
payment date or final maturity date prior to the Stated Maturity of the
Securities and (ii) in the case of Indebtedness subordinated in right of
payment to the Securities and the Guarantees thereof, the instrument
evidencing such Indebtedness shall include subordination provisions
substantially similar to those set forth in Articles XI and XIII as if the
Securities were Senior Indebtedness of the Company and the Guarantees were
Senior Indebtedness of the Guarantor with respect to such Indebtedness and (b)
after giving effect thereto and to any
acquisition being financed through the incurrence of such Indebtedness and to
any Acquired Indebtedness incurred or assumed therewith 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 number of outstanding shares of the Company'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, reasonably
satisfactory to the Trustee, (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 this Indenture.
SECTION 10.08. 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, 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 Securities, provided that the
dividend rate on such Preferred Stock on the date of its issuance shall not
exceed the yield to maturity on the Securities calculated on the basis of the
average Quoted Prices of the Securities 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
scheduled principal payment, maturity, scheduled repayment or scheduled
sinking fund payment, any Indebtedness which is pari passu with, or is
subordinated in right of payment to, the prior payment of the Securities or to
the Guarantees, provided, however, that such Indebtedness may be refinanced so
long as 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 of the Guarantor (except Redeemable Stock)) 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 or 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 Subsidiary or Special Subsidiary would become a Restricted
Subsidiary, in each case unless otherwise prohibited by the terms of this
Indenture, including (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 XI and XIII which
subordinate the guarantee to the Securities and the Guarantees to the same
extent as if the Securities were Senior Indebtedness of the Company and the
Guarantees were Senior Indebtedness of the Guarantor), 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 XI and XIII which subordinate the Investment to
the Securities and the Guarantees to the same extent as if the Securities were
Senior Indebtedness of the Company 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, being determined by the Board
of Directors, whose determination shall be evidenced by a resolution of the
Board of Directors) (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 in accordance with the provisions set forth
in Section 10.07 (including, in the case of Restricted Payments permitted in
the preceding clauses (ii), (v) and (vi), 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 quarter
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 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 not reduce the amount of Restricted
Payments in 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) 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 amount shall not reduce
the amount of Restricted Payments in clause III above, and that in each case
are not otherwise prohibited by the terms of this Indenture, provided,
further, however, no such Restricted Payments under clause (y) or (z) shall be
permitted if the condition set forth in clause (I) above is not satisfied.
SECTION 10.09. Limitation Upon Other Senior Subordinated
Indebtedness. Neither the Guarantor nor the Company 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 Securities or the Guarantees) that is subordinate
or junior in right of payment to any Senior Indebtedness of the Company or
Senior Indebtedness of the Guarantor, unless such Indebtedness is also pari
passu with, or subordinate in right of payment to, the Securities and the
Guarantees pursuant to subordination provisions substantially similar to those
set forth in Articles XI and XIII.
SECTION 10.10. 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 that Lien.
SECTION 10.11. 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 transaction in an 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 10.12. 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 hereof,
(B) any encumbrance or restriction with respect to a person
that was not a Subsidiary of the Company on the date hereof, 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 hereof 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 hereunder,
(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 Securities 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 the Indenture securing Indebtedness
permitted by the 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 Securities than
those under or pursuant to the agreement evidencing the Indebtedness so
renewed, extended, substituted, refinanced, or replaced.
SECTION 10.13. Purchase of Securities Upon Change in
Control.
(a) If there shall have occurred a Change in Control,
Securities shall be purchased by the Company, 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 below is given to
Holders or such later date as may be necessary for the Company 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
sum of the Issue Price plus accrued Original Issue Discount to the Change in
Control Purchase Date, subject to satisfaction by or on behalf of the Holder
of the requirements set forth in Section 10.13(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 Guarantor and the Company covenant to either (1)
repay in full all Senior Indebtedness of the Guarantor and Senior Indebtedness
of the Company whose terms 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 Securities as provided for
in this Section 10.13. The Guarantor and the Company shall first comply with
this subsection (b) before the Company shall be required to repurchase the
Securities pursuant to this Section 10.13, and any failure to comply with this
subsection (b) shall constitute a Default in the performance of a covenant
for purposes of Section 5.01(b).
(c) Within 30 days after the occurrence of a Change in
Control, the Company 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 Securities as specified herein to the Trustee and to each Holder
of the Securities at his address appearing on the Security Register, by
first-class mail, postage prepaid. The Trustee shall be under no obligation
to ascertain whether the Company 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 Securities, shall include
a form of Change in Control Purchase Notice to be completed by the Holder 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
10.13(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 Security not purchased will continue to
accrue Original Issue Discount;
(vi) that Securities 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 Company shall default
in the payment of the Change in Control Purchase Price) such Securities shall
cease to accrue Original Issue Discount;
(vii) (A) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of the Guarantor,
the 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 in the event the Guarantor is not
required to prepare any of the foregoing forms, the comparable information
required to be prepared by the Guarantor pursuant to Section 10.18), (B) a
description of any material developments in the Guarantor's business since the
latest annual or quarterly report filed with the Trustee pursuant to Section
7.04 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 10.13(c) and a brief description of those rights and
the procedures for withdrawing a Change in Control Purchase Notice.
(d) Holders electing to have Securities purchased under
Section 10.13(a) will be required to surrender such Securities 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 Security in respect of
which such notice of withdrawal is being submitted, (iii) the aggregate
Principal Amount of the Securities delivered for purchase by the Holder as to
which his election is to be withdrawn, and (iv) a statement that such Holder
is withdrawing his election to have such Securities purchased. Each Paying
Agent will promptly return to the prospective Holders thereof any Securities
with respect to which a Change in Control Purchase Notice has been withdrawn
in compliance with this Indenture.
(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
Security 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 10.13(d)) thereafter be entitled to receive solely the Change in
Control Purchase Price with respect to such Security. 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 10.13(c)) have been satisfied) and the time of delivery
of such Security to the relevant Paying Agent at the office of such Paying
Agent by the Holder thereof in the manner required by Section 10.13(c).
(f) On or prior to the Change in Control Purchase Date, the
Company shall deposit with the Paying Agent specified in the Change of Control
Notice (or if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.03) 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 Securities or portions thereof which are to be
purchased on that date.
(g) Any Security 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 Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, the Guarantor shall execute the Guarantee endorsed on, and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in the aggregate Principal Amount of
the Security so surrendered that is not purchased.
(h) The Company 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 10.13, such tender
offer rules shall control.
SECTION 10.14. Intentionally omitted.
SECTION 10.15. Limitation on Guaranties.
(a) The Guarantor will not permit any Subsidiary (other than
the Company), directly or indirectly, to assume, guarantee or in any other
manner become liable with respect to the payment of any Senior Indebtedness of
the Company or Senior Indebtedness of the Guarantor, unless (i) such
Subsidiarysimultaneously executes and delivers a supplemental indenture to
this Indenture providing for the guarantee of the payment of the Securities by
such Subsidiary, which guarantee shall include subordination provisions
substantially similar to those set forth in Article XI to the same extent as
the Securities are subordinated to Senior Indebtedness of the Company; 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
Securities 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 Company or Senior
Indebtedness of the Guarantor.
(b) The Guarantor will not permit any Subsidiary (other than
the Company), 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 Securities, unless such Subsidiary
simultaneously executes and delivers a supplemental indenture to the Indenture
providing for a guarantee of the payment of the Securities by such Subsidiary;
provided, however, in the case of such Subsidiary's assumption, guarantee or
other liability with respect to Indebtedness subordinated to the Securities,
such assumption, guarantee or other liability shall be subordinated to such
Subsidiary's guarantee of the Securities to the same extent as such
Indebtedness is subordinated to the Securities; and provided, further, that
this Section 10.15(b) shall not be applicable to any guarantee, assumption or
other liability of any Subsidiary of the Company in existence on the date
hereof 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
Securities 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 Securities.
SECTION 10.16. 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 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 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), or (y) in the case of an
Asset Sale involving Aero Services International, Inc., the consideration need
not be in cash and may consist in whole or in part of a promissory note not to
exceed $10,000,000, or (z) in the case of a farm-out transaction consistent
with industry standards and otherwise in accordance with the terms of this
Indenture, including, but not limited to, Section 10.11) 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 Guarantor or Senior
Indebtedness of the Company 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 the 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 hereof
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
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 Guarantor or
Senior Indebtedness of the Company or (B) redeem the Securities in accordance
with the provisions of Article III (without regard to minimum principal amount
requirements) 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 in such sentence
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 Company shall offer to purchase from all Holders of the Securities (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 multiple integrals of aggregate
Principal Amount of $1,000) of Securities that may be purchased out of the
Excess Proceeds, in accordance with the procedures set forth in Section
10.16(e) (the "Asset Sale Amount"), at an offer price (the "Asset Sale Offer
Price") in cash in an amount equal to 100% of the Issue Price plus accrued
Original Issue Discount to the Asset Sale Offer Date, in accordance with the
procedures set forth in this Section. To the extent that the aggregate amount
of Securities 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 Company becomes obligated to make an Asset Sale
Offer pursuant to Section 10.16(c), Securities shall be purchased by the
Company, 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 10.16(e) below is given to Holders, or such
later date as may be necessary for the Company 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 Offered
Price is less than the aggregate Asset Sale Offered Price of all Securities
tendered and to satisfaction by or on behalf of the Holder of the requirements
set forth in Section 10.16(f).
(e) Within 30 days after the date that the aggregate amount
of Excess Proceeds equals or exceeds $10,000,000, the Company shall give
written notice of the Offer (an "Asset Sale Offer Notice") to the Trustee and
to each Holder of the Securities, at his address appearing on the Security
Register, by first-class mail postage prepaid. The Trustee shall be under no
obligation to ascertain whether the Company 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 Securities, shall include
a form of Asset Sale Purchase Notice to be completed by the Holder and shall
state or provide:
(i) that the Holder has the right to require the Company
to repurchase, subject to proration, such Holder's Securities 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 Security not purchased will continue to
accrue Original Issue Discount;
(v) that Securities 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 Company shall default in the payment of
the Asset Sale Offer Price) such Securities shall cease to accrue Original
Issue Discount;
(vi) that the Securities 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 Securities tendered;
(vii) (A) the most recently filed Annual Report on Form
(including audited consolidated financial statements) of the Guarantor, the
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 in the event the Guarantor is not required to prepare any
of the foregoing forms, the comparable information required to be prepared by
the Guarantor pursuant to Section 10.18), (B) a description of any material
developments in the Guarantor's business since the latest annual or quarterly
report filed with the Trustee pursuant to Section 7.04 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 Company 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 10.16(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
10.16(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 Security that
the Holder will tender to be purchased and (B) the portion of the aggregate
Principal Amount of the Security that the Holder will tender to be purchased,
which portion must be $1,000 or an integral multiple thereof, and (ii)
delivery of such Security to such Paying Agent at such office prior to, 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 Securities 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 Securities tendered for purchase. If a Holder has
elected to deliver to the Company for purchase a portion of a Security, and if
the aggregate Principal Amount of such portion is $1,000 or an integral
multiple of $1,000, the Company shall, subject to proration, purchase such
portion from the Holder thereof pursuant to this Section 10.16. Provisions of
this Indenture that apply to the purchase of all of a Security also apply to
the purchase of a portion of such Security. Each Paying Agent shall promptly
notify the Company 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 Security
in respect of which such Purchase Notice was given shall (unless such Asset
Sale Purchase Notice is withdrawn pursuant to Section 10.16(k)) thereafter be
entitled to receive solely the Asset Sale Offered Price with respect to such
Security. Such Asset Sale Offered 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 10.16(f) have been satisfied) and the time
of delivery of such Security to the relevant Paying Agent at the office of
such Paying Agent by the Holder thereof in the manner required by Section
10.16(f).
(h) On or prior to the Asset Sale Purchase Date, the Company
or the Guarantor shall deposit with the Paying Agent specified in the Asset
Sale Offer Notice 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, and accrued
Original Issue Discount on, all the Securities or portions thereof which are
to be purchased on that date.
(i) Any Security 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 Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, the Guarantor shall execute the Guarantee endorsed on, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, one or more new Securities 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 Security so
surrendered that is not purchased.
(j) The Company 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 10.16, 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 Security 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 Security in respect of
which such notice of withdrawal is being submitted;
(ii) the aggregate Principal Amount of the Securities
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 Security that remains subject to the original Asset Sale
Purchase Notice and that has been or will be delivered for purchase by the
Company.
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 Securities with respect to which a 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 Guarantor
existing on the date of this Indenture or thereafter or Senior Indebtedness of
the Company existing on the date of this Indenture or thereafter) that would
materially impair the ability of the Company to make an Asset Sale Offer to
purchase the Securities upon an Asset Sale or, if such Asset Sale Offer is
made, to pay for the Securities tendered for purchase.
SECTION 10.17. Compliance Certificates.
(a) The Guarantor and the Company shall each deliver to the
Trustee, within 60 days after the end of each fiscal quarter (105 days after
the end of the last fiscal quarter of each year), an Officers' Certificate
stating whether or not the signers know of any Default or Event of Default
that occurred during such fiscal quarter. In the case of the Officers'
Certificate delivered within 105 days of the end of the Guarantor's and the
Company's fiscal year, such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Guarantor's and the
Company's respective compliance with all conditions and covenants under this
Indenture. For purposes of this Section 10.17(a), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If they do know of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default
and its status. The first certificate to be delivered pursuant to this
Section 10.17(a) shall be for the first fiscal quarter beginning after the
execution of this Indenture.
(b) The Company and the Guarantor shall each deliver to the
Trustee within 120 days after the end of each fiscal year, a certificate
signed by the Guarantor's and the Company's independent certified public
accountants stating (i) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (ii) whether, during the course of their audit examination
anything came to their attention that caused them to believe that the Company
or the Guarantor failed to comply with the terms, covenants, provisions, or
conditions of the Indenture insofar as they relate to accounting matters and
describing the nature of any such areas of noncompliance.
SECTION 10.18. SEC Reports and Reports to Securityholders.
Within 15 days after the Guarantor files with the SEC copies of its annual
reports and other information, documents and reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, the Guarantor shall file the same with the Trustee.
So long as the Securities 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 Guarantors' 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 Securities at their
addresses appearing in the register of Securities 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 TIA Section 314(a).
ARTICLE XI
Subordination of Securities
SECTION 11.01. Securities Subordinate to Senior Indebtedness
of the Company. The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the Issue Price,
premium (if any), accrued Original Issue Discount, Redemption Price, Change in
Control Purchase Price, Asset Sale Offer Price or interest (if any), and any
other payments required hereunder, on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment as provided
in this Article to the prior payment in full of all Senior Indebtedness of the
Company; provided, however, that the Securities, the Indebtedness represented
thereby and the payment of the Issue Price, premium (if any), accrued Original
Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale
Offer Price or interest (if any), and any other payments required hereunder on
each and all of the Securities in all respects shall rank equally with, or
prior to, all existing and future indebtedness (including, without limitation,
Indebtedness) of the Company that is subordinated to Senior Indebtedness of
the Company.
This Article XI shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue
to hold Senior Indebtedness of the Company; and such provisions are made for
the benefit of the holders of Senior Indebtedness of the Company; and such
holders are made obligees hereunder and they or each of them may enforce such
provisions.
SECTION 11.02. Payment Over of Proceeds Upon Dissolution,
etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshaling of assets or liabilities of the
Company, then, and in any such event:
(1) the holders of Senior Indebtedness of the Company shall
be entitled to receive payment in full of all amounts due on or in respect of
all Senior Indebtedness of the Company, or provision shall be made for such
payment, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character (excluding securities of the
Company or any other corporation that are equity securities or are
subordinated in right of payment to all Senior Indebtedness of the Company,
that may at the time be outstanding, to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article; such securities are hereinafter collectively referred to as
"Permitted Junior Securities") on account of the Principal Amount, premium (if
any), accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price or interest (if any), or any other
payment required hereunder, in connection with the Securities; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article shall be
paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness of the
Company or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness of the Company may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness of the Company held or represented by each, to the extent
necessary to make payment in full in cash equivalents or cash, of all Senior
Indebtedness of the Company remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness
of the Company; and
(3) if, notwithstanding the foregoing provisions of this
Section 11.02, the Trustee or the Holder of any Security shall have received,
subsequent to the occurrence of any of the events described in the preceding
clauses (a),(b), or (c) of this Section, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, in respect of Principal Amount, premium (if any), accrued Original
Issue Discount, Redemption Price, Change in Control Purchase Price, Asset Sale
Offer Price or interest (if any), or any other payment required hereunder on
the Securities before all Senior Indebtedness of the Company is paid in full
or payment thereof provided for, then and in such event such payment or
distribution (excluding Permitted Junior Securities) shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary
to pay all Senior Indebtedness of the Company in full in cash equivalents,
cash or, as acceptable to the holders of Senior Indebtedness of the Company,
any other manner, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness of the Company.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another person upon the terms and
conditions set forth in Article VIII shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of
creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in Article VIII.
SECTION 11.03. Suspension of Payment When Senior
Indebtedness of the Company in Default.
(a) Unless Section 11.02 shall be applicable, upon (1) the
occurrence of a Payment Default and (2) receipt by the Trustee and the Company
from a holder or representative of holders of Designated Senior Indebtedness
of written notice of such occurrence, then no payment or distribution of any
assets of the Company of any kind or character (excluding Permitted Junior
Securities) shall be made by the Company on account of the Principal Amount,
Issue Price, premium (if any), accrued Original Issue Discount, Redemption
Price, Change in Control Purchase Price, Asset Sale Offer Price or interest
(if any), or any other payment required to be made hereunder or on account of
the purchase or redemption or other acquisition of Securities unless and until
such Payment Default shall have been cured or waived or shall have ceased to
exist or such Senior Indebtedness of the Company shall have been discharged or
paid in full, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 11.02 shall be applicable, upon (1) the
occurrence of a Non-payment Default and (2) receipt by the Trustee and the
Company from a holder or representative of holders of Designated Senior
Indebtedness of written notice of such occurrence, no payment or distribution
of any assets of the Company of any character (excluding Permitted Junior
Securities) shall be made by the Company on account of the Principal Amount,
Issue Price, premium (if any), accrued Original Issue Discount, Redemption
Price, Change in Control Purchase Price, Asset Sale Offer Price or interest
(if any), or any other payments required to be made hereunder or on account of
the purchase or redemption or other acquisition of Securities for a period
("Payment Blockage Period") commencing on the earlier of the dates of receipt
by the Company or Trustee of such notice from a holder or representative of
holders of Designated Senior Indebtedness and ending upon the earlier of (x)
more than 179 days having elapsed since receipt of such written notice by the
Company or Trustee, whichever was earlier, (y) the date on which such
Non-payment Default shall have been cured or waived or shall have ceased to
exist or such Senior Indebtedness of the Company shall have been discharged or
paid in full or (z) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from the
Designated Senior Indebtedness holder or representative initiating such
Payment Blockage Period, after which, in the case of clause (x), (y) or (z),
the Company shall resume making any and all required payments in respect of
the Securities, including any missed payments. Notwithstanding any other
provision of this Indenture, only one Payment Blockage Period may be commenced
with respect to the Securities within any 365-day period and no Non-payment
Default with respect to Designated Senior Indebtedness which existed or was
continuing on the date of the commencement of any Payment Blockage Period will
be, or can be, made the basis for the commencement of a second Payment
Blockage Period, whether or not within a period of 365 consecutive days,
unless such event of default shall have been cured or waived for a period of
not less than 90 consecutive days. In no event shall a Payment Blockage
Period extend beyond 179 days from the date of the receipt of the notice
referred to in clause (2)
hereof.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to the Senior
Representative or other representative of the holders of the Designated Senior
Indebtedness or as a court of competent jurisdiction shall direct.
SECTION 11.04. Payment Permitted if No Default. Nothing
contained in this Article, elsewhere in this Indenture or in any of the
Securities shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 11.02 or under the
conditions described in Section 11.03, from making payments at any time of the
Principal Amount, premium (if any), accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price or
interest (if any), on the Securities.
SECTION 11.05. Subrogation to Rights of Holders of Senior
Indebtedness of the Company. Subject to the payment in full of all Senior
Indebtedness of the Company, the Holders of the Securities shall be subrogated
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to Senior Indebtedness of the Company to
the same extent as the Securities are subordinated and which is entitled to
like rights of subrogation) to the rights of the holders of such Senior
Indebtedness of the Company, from time to time, to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness of the Company until the Principal Amount, premium (if any),
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price, interest (if any), and any other payment
required to be made hereunder in connection with the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to
the holders of Senior Indebtedness of the Company of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness of the Company by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness of the Company.
SECTION 11.06. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the purpose of defining
the relative rights of the Holders of the Securities on the one hand and the
holders of Senior Indebtedness of the Company on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness of the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the Principal Amount,
premium (if any), and accrued Original Issue Discount, Redemption Price,
Change in Control Purchase Price, Asset Sale Offer Price, interest (if any),
and any other payment required to be made hereunder in connection with the
Securities as and when the same shall become due and payable in accordance
with their terms; and (b) affect the relative rights against the Company of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness of the Company.
SECTION 11.07. Trustee to Effectuate Subordination. Each
Holder of a Security 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 provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of Company owning to such Holder in the form required in such
proceedings and the causing of such claim to be approved.
SECTION 11.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company 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 Company or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of
this Section, the holders of Senior Indebtedness of the Company may, at any
time and from time to time, without the consent of or notice to the Trustee or
the Holder of the Securities, without incurring responsibility to the Holders
of the Securities and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness of the Company, do any one or
more of the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness of the
Company or any instrument evidencing the same or any agreement under which
Senior Indebtedness of the Company is outstanding; (2) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness of the Company; (3) release any person liable in any
manner for the collection
or payment of Senior Indebtedness of the Company; and (4) exercise or refrain
from exercising any rights against the Company and any other person; provided,
however, that in no event shall any such actions limit the right of the
Holders of the Securities to take any action to accelerate the maturity of the
Securities pursuant to Article V of this Indenture or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Article.
SECTION 11.09. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness of
the Company or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the Principal Amount, premium (if any), or accrued Original Issue
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, interest (if any), and any other payment required to be made hereunder
in connection with any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice to the Trustee and the Company by a person representing
himself to be a holder of Senior Indebtedness of the Company (or a trustee,
fiduciary or agent therefor). In the event that 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 Company to participate in any
payment or distribution pursuant to this Article XI, 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 Company held by such person,
the extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Article, 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 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness of the Company and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article.
SECTION 11.11. Rights of Trustee as a Holder of Senior
Indebtedness of the Company; Preservation of Trustee's Rights. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness of the Company which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness of the Company, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.05. Notwithstanding anything contained herein to the contrary, the Trustee
is subject to TIA Section 310(b).
SECTION 11.12. Article Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting under this Indenture, the terms "Trustee" as
used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that this Section 11.12 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 11.13. No Suspension of Remedies. Nothing contained
in this Article shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article V of this Indenture or to pursue any right or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article of the holders, from time to time, of Senior Indebtedness of the
Company.
SECTION 11.14. Trustee's Relation to Senior Indebtedness of
the Company. With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XI,
and no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Article XI against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and the Trustee shall not be
liable to any holder of Senior Indebtedness of the Company if it shall
mistakenly pay over or deliver to Holders, the Company, or any other person
moneys or assets to which any holder of Senior Indebtedness of the Company
shall be entitled by virtue of this Article or otherwise.
ARTICLE XII
Defeasance and Covenant Defeasance
SECTION 12.01. Option to Effect Defeasance or Covenant
Defeasance. The Company or the Guarantor may, at its option by resolution of
its Board of Directors, a certified copy of which has been delivered to the
Trustee, at any time, with respect to the Securities, elect to have either
Section 12.02 or Section 12.03 be applied to all outstanding Securities upon
compliance with the conditions set forth below in this Article XII.
SECTION 12.02. Defeasance and Discharge. Upon the Company's
or the Guarantor's exercise under Section 12.01 of the option applicable to
this Section 12.02, the Company and the Guarantor shall each be deemed to have
been discharged from its obligations with respect to all outstanding
Securities and the Guarantees endorsed thereon on the date the conditions set
forth below are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Securities and the Guarantees endorsed thereon, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 12.05 and the
other Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities, the Guarantees
endorsed thereon and this Indenture (and the Trustee, on demand of and at the
expense of the Company shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of outstanding Securities
to receive,
solely from the trust fund described in Section 12.04 and as more fully set
forth in such Section, payments in respect of the Principal Amount, premium
(if any) and accrued Original Issue Discount on such Securities when such
payments are due, (B) the Company's and the Guarantor's respective obligations
with respect to such Securities and the Guarantees endorsed thereon under
Sections 2.03, 2.04, 2.05, 10.02, and 10.04, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's and the
Guarantor's obligations in connection therewith and (D) this Article XII.
Subject to compliance with this Article XII, the Company or the Guarantor may
exercise its option under this Section 12.02 notwithstanding the prior
exercise of its option under Section 12.03 with respect to the Securities and
the Guarantees endorsed thereon.
SECTION 12.03. Covenant Defeasance. Upon the Company's or
the Guarantor's exercise under Section 12.01 of the option applicable to this
Section 12.03, the Company and the Guarantor shall be released from their
respective obligations under the covenants contained in Articles VIII and XI
and in Sections 10.07 through 10.16 with respect to the outstanding Securities
and the Guarantees endorsed thereon on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities and the Guarantees endorsed thereon shall thereafter be deemed to
be not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Securities and
the Guarantees endorsed thereon shall not be deemed outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means that,
with respect to the outstanding Securities and the Guarantees endorsed
thereon, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 5.01(b) or Section 5.01(g), but, except as specified above, the
remainder of this Indenture and such Securities and the Guarantees endorsed
thereon shall be unaffected thereby. In addition, upon the Company's or the
Guarantor's exercise under Section 12.01 of the option applicable to Section
12.03, Sections 5.01(b) through 5.01(g) (other than Section 5.01(e) and
Section 5.01(f)) shall not constitute Events of Default.
SECTION 12.04. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of either
Section 12.02 or Section 12.03 to the outstanding Securities and the
Guarantees endorsed thereon:
(1) The Company or the Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.08 who shall agree to comply with the
provisions of this Article XII applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) cash in U.S. Dollars in an amount, or (B) U.S. Government Obligations
(defined below) that through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, cash in U.S. Dollars in an amount,
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 and discharge and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the Issue Price of (and premium, if any) and accrued Original
Issue Discount on the outstanding Securities on the Stated Maturity of such
Principal Amount (and premium, if any) or accrued Original Issue Discount and
(ii) any mandatory payments applicable to the outstanding Securities on the
day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to the Securities. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt;
(2) In the case of an election under Section 12.02, the
Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel in the United States stating that (x) the Company or the Guarantor has
received from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the date of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred;
(3) In the case of an election under Section 12.03, the
Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel in the United States to the effect that the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(4) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit
or, insofar as Section 5.01(e) or 5.01(f) is concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(5) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or the
Guarantor is a party or by which it is bound;
(6) In the case of an election under either Section 12.02 or
12.03, the Company or the Guarantor shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally;
(7) In the case of an election under either Section 12.02 or
12.03, the Company or the Guarantor shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company or the
Guarantor, as the case may be, pursuant to its election under Section 12.02 or
12.03 was not made by the Company or the Guarantor, as the case may be, with
the intent of preferring the Holders over other creditors of the Company or
the Guarantor or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or the Guarantor or others; and
(8) The Company or the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel in the United
States, each stating that all conditions precedent provided for relating to
either the defeasance under Section 12.02 or the covenant defeasance under
Section 12.03 (as the case may be) have been complied with as contemplated by
this Section 12.04.
On and after the date the conditions set forth above are
satisfied, the United States dollars or U.S. Government Obligations so
deposited shall not be subject to the rights of the holders of Senior
Indebtedness of the Company or Senior Indebtedness of the Guarantor pursuant
to the provisions of Article XI.
SECTION 12.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to
the provisions of Section 4.02, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively, for purposes of this Section 12.05, the
"Trustee") pursuant to Section 12.04 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of the Principal Amount
(and premium, if any) and accrued Original Issue Discount, but such money need
not be segregated from other funds except to the extent required by law.
Money and U.S. Government Obligations so held in trust are not subject to
Article XI.
The Company and the Guarantor shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
the cash or U.S. Government Obligations deposited pursuant to Section 12.04 or
the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Article XII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Order any money or U.S. Government Obligations held by it as provided in
Section 12.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
12.04(1)), are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 12.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any United States dollars or U.S. Government
Obligations in accordance with Section 12.02 or 12.03, as the case may be, by
reason of any order of judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantor's obligations under the Indenture and the
Securities and the Guarantees endorsed thereon shall be revived and reinstated
as though no deposit had occurred pursuant to Section 12.02 or 12.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with section 12.02 or 12.03, as the case
may be; provided, however, that, if the Company or the Guarantor makes any
payment of the Principal Amount (or premium, if any) or accrued Original Issue
Discount on any Security following the reinstatement of its obligations, the
Company or the Guarantor, as the case may be, shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE XIII
Guarantees
SECTION 13.01. Guarantee. The Guarantor hereby
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee the due and prompt payment of the Principal Amount,
premium (if any), Issue Price, accrued Original Issue Discount, Redemption
Price, Change in Control Purchase Price, Asset Sale Offer Price, and interest
(if any), in accordance with the terms of the Securities and this Indenture.
In case of the failure of the Company punctually to pay any such Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price,
and interest (if any), in accordance with the terms of the Securities and this
Indenture, the Guarantor hereby agrees to cause any such payment to be made
promptly when and as the same shall become due and payable, and as if such
payment were made by the Company. The Guarantor hereby further agrees that
any amounts to be paid by the Guarantor under this Guarantee shall be paid
without deduction or withholding for any and all present and future
withholding taxes,levies, imposts and charges whatsoever imposed by or for the
account of the Cayman Islands or any political subdivision or taxing authority
thereof or therein, or if deduction or withholding of any such taxes, levies,
imposts or charges shall at any time be required by the Cayman Islands or any
such subdivision or authority, the Guarantor will (subject to compliance by
the Holder of such Security with any relevant administrative requirements) pay
such additional amount in respect of Principal Amount, premium (if any), Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price, and interest (if any), in accordance
with the terms of the Securities and this Indenture, as may be necessary in
order that the net amounts paid to such Holder or the Trustee, as the case may
be, pursuant to this Guarantee, after such deduction or withholding, shall
equal the respective amounts of Principal Amount, premium (if any), Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price, and interest (if any), in accordance
with the terms of the Securities and this Indenture, 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 Amount, premium (if any), Issue Price, accrued Original Issue
Discount, Redemption Price, Change in Control Purchase Price, Asset Sale Offer
Price, and interest (if any), in accordance with the terms of the Securities
and this Indenture, 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 the Securities, any failure to enforce the
provisions of any Security or this Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the Holder of any
Security 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 the Securities or the interest rate (if any) thereon or increase any
premium payable upon redemption thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any
Security or the indebtedness evidenced thereby required pursuant to the terms
of the Securities 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 Amount, premium (if any),
Issue Price, accrued Original Issue Discount, Redemption Price, Change in
Control Purchase Price, Asset Sale Offer Price, and interest (if any), in
accordance with the terms of the Securities and this Indenture.
SECTION 13.02. Subrogation. The Guarantor shall be
subrogated to all rights of the Holder of a Security against the Company in
respect of any amounts paid to such Holder by the Guarantor pursuant to the
provisions of this Guarantee; provided, however, that the Guarantor shall not
be entitled to enforce, or to receive any payments arising out of or based
upon, such right of subrogation until the Principal Amount, premium (if any),
Issue Price, accrued Original Issue Discount, Redemption Price, Change in
Control Purchase Price, Asset Sale Offer Price and interest (if any), in
accordance with the terms of the Securities and this Indenture, shall have
been paid in full.
SECTION 13.03. Execution and Delivery of Guarantees. To
evidence its guarantee set forth in Section 13.01, 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 13.04. 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 Company.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
TRITON ENERGY CORPORATION
as Issuer
By:__________________________
Title:
Attest:__________________
Title:
TC HOLDINGS LIMITED
as Guarantor
By:___________________________
Title:
Attest:__________________
Title:
CHEMICAL BANK, as Trustee
By:___________________________
Title:
Attest:___________________
Title:
STATE OF ________________________ )
) ss.:
COUNTY OF ______________________ )
On this _____ day of , 1995, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ____________________, that he is ____________________
of Triton Energy Corporation, a corporation described in and which executed
the above instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
_________________________
Notary Public
STATE OF ________________________ )
) ss.:
COUNTY OF ______________________ )
On this _____ day of , 1995, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ____________________, that he is __________________ of
________, a corporation described in and which executed the above instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
_________________________
Notary Public
(Notarial Seal)
STATE OF ________________________ )
) ss.:
COUNTY OF ______________________ )
On this _____ day of , 1995, before me personally came
____________________, to me known, who being by me duly sworn, did depose and
say that he resides at ____________________, that he is ______________ of
Chemical Bank, one of the entities described in and which executed the above
instrument; and that he signed his name thereto by authority of the Board of
Directors of Chemical Bank.
__________________________
Notary Public
(Notarial Seal)
EXHIBIT A
[FORM OF FACE OF SECURITY]
FOR PURPOSES OF SECTIONS 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 $452.40, THE ISSUE DATE IS NOVEMBER 13, 1992 AND THE YIELD TO
MATURITY IS 12.5%.
TRITON ENERGY CORPORATION
Senior Subordinated Discount
Notes due 1997
No.
Issue Date: November 13, 1992
Issue Price: $547.60
(for each $1,000 Principal Amount)
Original Issue Discount: $452.40
(for each $1,000 Principal Amount)
Triton Energy Corporation, a Delaware corporation (the
"Company"), promises to pay to or registered assigns, the Principal
Amount of Dollars ($ ) on November 1, 1997.
This Security shall not bear interest except as specified on
the other side of this Security. Original Issue Discount will accrue as
specified on the other side of this Security.
Additional provisions of this Security are set forth on
the other side of this Security.
Dated:
TRITON ENERGY CORPORATION
By:__________________________
Secretary
[SEAL]
By:___________________________
President
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
referred to in the within-
mentioned Indenture.
CHEMICAL BANK
as Trustee
By:__________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF SECURITY]
Senior Subordinated Discount Note due 1997
1. Interest
This Security shall not bear interest, except that if the
Principal Amount hereof or any portion of such Principal Amount is not paid
when due (whether upon acceleration pursuant to Section 5.02 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 other required payments pursuant to paragraph 8 hereof or upon the Stated
Maturity of this Security), then in each such case the overdue amount shall
bear interest at the rate of 12.5% 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.
Original Issue Discount (the difference between the Issue
Price and the Principal Amount of the Security), in the period during which
any of the Securities remains outstanding, shall accrue at 12.5% per annum, on
a semiannual bond equivalent basis using a 360-day year composed of twelve
30-day months, commencing on the Issue Date of this Security.
2. Method of Payment
Subject to the terms and conditions of the Indenture, Holders
must surrender Securities to a Paying Agent to collect payments in respect of
the Securities. The Company or the Guarantor 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. However, the Company may make such cash payments
by check payable in such money.
3. Paying Agent and Registrar
Initially, Chemical Bank (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent or
Registrar without notice, other than notice to the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent or
Registrar.
4. Indenture
The Company issued the Securities under an Indenture, dated
as of November 13, 1992 as amended by the supplement thereto dated July 1,
1993, the supplement thereto dated May 12, 1995 and the supplement thereto
dated ______, 1995 (the "Indenture"), among the Company, the Guarantor and the
Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939, as amended. Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and holders are referred to the Indenture and the
Trust Indenture Act for a statement of those terms.
The Securities are general unsecured obligations of the
Company, limited to $240,000,000 aggregate Principal Amount.
5. Subordination
The Indebtedness represented by the Securities 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 Company whether outstanding on the date of such Indenture
or thereafter created, incurred, assumed or guaranteed. Each Holder of a
Security by his acceptance hereof agrees and accepts to be bound by such
provisions.
6. Redemption at the Option of the Company
No sinking fund is provided for the Securities. The
Securities are redeemable as a whole, or from time to time in part, at any
time at the option of the Company, in a minimum amount of at least $20,000,000
aggregate Principal Amount or, if such aggregate Principal Amount outstanding
is less than $20,000,000, such smaller amount, for cash at a price equal to
the sum of the Issue Price plus accrued Original Issue Discount to the date of
redemption plus the Make-Whole Premium.
The Make-Whole Premium shall mean an amount equal to the
excess, if any, of (a) over (b), where (a) equals the present value of the
Principal Amount of a Security, discounted on a semiannual bond equivalent
basis from November 1, 1997 to the Redemption Date at a per annum interest
rate equal to the lower of (x) the Standard Yield set forth in the table below
applicable to the Redemption Date for which the determination is being made
plus 100 basis points and (y) the Treasury Yield for such Redemption Date plus
100 basis points and (b) the Issue Price plus accrued Original Issue
Discount to the Redemption Date.
Standard Yield Period Standard Yield
From issuance to and
including November 1, 1993 5.93%
From November 2, 1993 to and
including November 1, 1994 5.39%
From November 2, 1994 to and
including November 1, 1995 4.84%
From November 2, 1995 to and
including November 1, 1996 4.37%
From November 2, 1996 to and
including October 31, 1997 3.49%
"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 date fixed for prepayment (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the then remaining average life of the Securities;
provided, that if the average life of the Securities 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 the average life of the Securities 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.
7. 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 Securities to
be redeemed at the Holder's registered address. If money sufficient to pay
the Redemption Price of all Securities to be redeemed on the Redemption Date
is deposited with the Paying Agent prior to or on the Redemption Date, on and
after such date Original Issue Discount ceases to accrue on such Securities or
portions thereof.
8. Offers to Repurchase the Securities by the Company
In certain circumstances described in the Indenture, the
Company may be required to make offers to repurchase the Securities.
9. Denominations; Transfer; Exchange
The Securities 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 Securities 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 Registrar
need not register the transfer of or exchange any Securities called for
redemption or any Securities in respect of which a notice of redemption, a
Change in Control Purchase Notice or a notice of repurchase by the Company or
has been given and not withdrawn (except, in the case of a Security to be
redeemed or purchased in part, as the case may be, the portion of the Security
not to be redeemed or purchased) or for a period of 30 days before the
Redemption Date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
11. Unclaimed Money
The Trustee and each Paying Agent shall each return to the
Company upon written request any money held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years;
provided, however, that the Trustee or any such Paying Agent, before being
required to make any such return, may at the expense of the Company cause to
be published once in a newspaper of general circulation in The City of New
York or mail to each such Holder notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed money then
remaining will be returned to the Company. After return to the Company,
Holders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person.
12. Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
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 Securities at the time
outstanding. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company, the Guarantor and the Trustee
may amend the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to comply with Article VIII of the Indenture, to provide
for uncertificated Securities in addition to or in place of certificated
Securities or to make any change that does not adversely affect the rights of
any Holder of Securities.
13. Defaults and Remedies
Under the Indenture, Events of Default include, among
others,(i) default in payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Change in Control Purchase Price,
Asset Sale Offer Price or any other payment required to be made under the
Indenture, when the same becomes due and payable; (ii) failure by the Company
or the Guarantor to comply with other agreements in the Indenture or the
Securities, subject to notice and lapse of time; and (iii) 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
Securities at the time outstanding, may declare all the Securities to be due
and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default which will result in the Securities becoming due and payable
immediately upon the occurrence of such Events of Default.
Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of 25% in
aggregate Principal Amount of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a
Default in payment of amounts specified in clause (i) above) if it determines
that withholding notice is in their interests.
14. Trustee Dealings with the Company and the Guarantor
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company, the Guarantor or their respective
Affiliates and may otherwise deal with the Company, the Guarantor or their
respective Affiliates with the same rights it would have if it were not
Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Guarantor shall not have any liability for any obligations of
the Company or the Guarantor under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases
all such liability. The waiver and release are part of the consideration for
the issue of the Securities.
16. Authentication
This Security 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 Security.
17. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder 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).
18. Governing Law
THIS SECURITY 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 Company will furnish to any Holder of Securities upon
written request and without charge a copy of the Indenture which has in it the
text of this Security in larger type. Requests may be made to:
Triton Energy Corporation
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention of Corporate Secretary
Exhibit B
GUARANTEE OF TC HOLDINGS LIMITED
19. Guarantee. For value received, TC Holdings Limited, a
company duly organized and existing under the laws of the Cayman Islands
(herein called the "Guarantor", which term includes any successor corporation
under the Indenture referred to in the Security upon which this Guarantee is
endorsed), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed the due and prompt payment of Principal
Amount, premium (if any), Issue Price, accrued Original Issue Discount,
Redemption Price, Change in Control Purchase Price, Asset Sale Offer Price and
interest (if any), in accordance with the terms of the Securities and this
Indenture. 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 "Company", which term includes any successor corporation under such
Indenture) punctually to make any such payment of Principal Amount, premium
(if any), Issue Price, accrued Original Issue Discount, Redemption Price,
Change in Control Purchase Price, Asset Sale Offer Price and interest (if
any), in accordance with the terms of the Securities and this Indenture, the
Guarantor hereby agrees to cause any such payment to be made promptly when and
as the same shall become due and payable, and as if such payment were made by
the Company.
The Guarantor hereby further agrees that any amounts to be
paid by the Guarantor under this Guarantee shall be paid without deduction or
withholding for any and all present and future withholding taxes, levies,
imposts and charges whatsoever imposed by or for the account of the Cayman
Islands or any political subdivision or taxing authority thereof or therein,
or if deduction or withholding of any such taxes, levies, imposts or charges
shall at any time be required by the Cayman Islands or any such subdivision or
authority, the Guarantor will (subject to compliance by the Holder of such
Security with any relevant administrative requirements) pay such additional
amount in respect of Principal Amount, premium (if any), Issue Price, accrued
Original Issue Discount, Redemption Price, Change in Control Purchase Price,
Asset Sale Offer Price and interest (if any), in accordance with the terms of
the Securities and this Indenture, as may be necessary in order that the net
amounts paid to such Holder or the Trustee under such Indenture, as the case
may be, pursuant to this Guarantee, after such deduction or withholding, shall
equal the respective amounts of Principal Amount, premium (if any), Issue
Price, accrued Original Issue Discount, Redemption Price, Change in Control
Purchase Price, Asset Sale Offer Price and interest (if any), in accordance
with the terms of the Securities and this Indenture, 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 Amount, premium (if any), Issue Price,
accrued Original Issue Discount, Redemption Price, Change in Control Purchase
Price, Asset Sale Offer Price and interest (if any), in accordance with the
terms of the Securities and this Indenture, 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 Company
with respect thereto, by the Holder of such Security or such Trustee, or any
other circumstance which may otherwise constitute a legal or equitable
discharge of a surety or guarantor, provided, however, that, notwithstanding
the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such Security or
the interest rate thereon or increase any premium payable upon redemption
thereof. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged except by payment in full of the principal of (and premium, if
any) and interest on such Security.
The Guarantor shall be subrogated to all rights of the Holder
of such Security against the Company in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of (and premium, if any) and interest on all Securities of
the same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal of (and premium, if any) and interest on the Security
upon which this Guarantee is endorsed at the times, place and rate, and in the
cash or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of such Security shall have
been manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such Indenture.
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.
[____________________________]
______________________________
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 [6688
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000], 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
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
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:_______________________________
