FORM OF SENIOR SUBORDINATED INDENTURE
FORM OF SENIOR SUBORDINATED INDENTURE, dated as of ________________
____, 199_ (this "Indenture"), among TRITON ENERGY LIMITED, a Cayman Islands
company ("TEL"), TRITON ENERGY CORPORATION, a Delaware corporation ("TEC"
and, together with TEL, the "Issuers"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuers have each duly authorized the issuance from
time to time of their joint and several unsecured senior subordinated
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this
Indenture; and
WHEREAS, the Issuers have duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been undertaken and
completed;
NOW, THEREFORE, in consideration of the premises and the purchases
of the Securities by the Holders (as hereinafter defined) thereof, the
Issuers 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 ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly
provided herein or in any indenture supplemental hereto or unless the context
otherwise clearly requires). All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, including terms defined therein
by reference to the Securities Act of 1933, as amended (the "Securities
Act"), shall have the meanings assigned to such terms in said Trust Indenture
Act of 1939 and in said Securities Act as in force at the date of this
Indenture (except as otherwise expressly provided herein or in any indenture
supplemental hereto or unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted on the
date of this Indenture.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and
"date of execution and delivery of this Indenture" and other expressions of
similar import refer to the effective date of the original execution and
delivery of this Indenture, viz. as of ________________ ____, 199_.
The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
United States Code Sections 101 et seq., or any successor statute thereto.
"Board of Directors" when used with respect to either of the
Issuers, means either the Board of Directors of such Issuer or any committee
of such Board duly authorized to act on its behalf.
"Board Resolution" when used with respect to either of the Issuers,
means one or more resolutions, certified by the secretary or an assistant
secretary of such Issuer to have been duly adopted or consented to by the
Board of Directors of such Issuer and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless
otherwise specified in a Board Resolution and an Officers Certificate with
respect to a particular series of Securities, a day that (a) in the Place of
Payment (or in any of the Places of Payment, if more than one) in which
amounts are payable, as specified in the form of such Security, and (b) in
the city in which the Corporate Trust Office is located, is not a day on
which banking institutions are authorized or required by law or regulation to
close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
as amended, or, if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body
performing such duties on such date.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets included on the most recent consolidated balance sheet of TEL and its
Restricted Subsidiaries, less applicable reserves and other properly
deductible items and after deducting therefrom (a) all current liabilities
and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all in accordance with
generally accepted accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuers pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder, and, if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
"Event of Default" means any event or condition specified as such
in Section 5.1
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance
with Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such
Security is registered in the security register kept by the Issuers for that
purpose in accordance with the terms hereof.
"Indebtedness" with respect to any Person, means, without
duplication:
(a) (i) the principal of and premium, if any, and interest, if
any, on indebtedness for money borrowed of such Person, indebtedness of
such Person evidenced by bonds, notes, debentures or similar
obligations, and any guaranty by such Person of any indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures or
similar obligations of any other Person, whether any such indebtedness
or guaranty is outstanding on the date of this Indenture or is
thereafter created, assumed or incurred, (ii) obligations of such Person
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (iii) the principal of and
premium, if any, and interest, if any, on indebtedness incurred, assumed
or guaranteed by such Person in connection with the acquisition by it or
any of its subsidiaries of any other businesses, properties or other
assets; (iv) lease obligations which such Person capitalizes in
accordance with Statement of Financial Accounting Standards No. 13
promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time in
effect; (v) any indebtedness of such Person representing the balance
deferred and unpaid of the purchase price of any property or interest
therein (except any such balance that constitutes an accrued expense or
trade payable) and any guaranty, endorsement or other contingent
obligation of such Person in respect of any indebtedness of another that
is outstanding on the date of this Indenture or is thereafter created,
assumed or incurred by such Person; and (vi) obligations of such Person
under interest rate, commodity or currency swaps, caps, collars, options
and similar arrangements if and to the extent that any of the foregoing
indebtedness in (i) through (vi) would appear as a liability on the
balance sheet of such Person in accordance with generally accepted
accounting principles;
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness
in clause (a) above.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuers become obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"Issuer" means either TEL or TEC and "Issuers" means both TEL and
TEC, and, subject to Article Nine, their respective successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuers which is signed in the name of each of the Issuers by the chairman of
the Board of Directors, the president or any vice president of each such
Issuer and delivered to the Trustee.
"Officers' Certificate", when used with respect to each Issuer,
means a certificate signed by the chairman of the Board of Directors, the
president, or any vice president and by the treasurer, any assistant
treasurer, the controller, any assistant controller, the secretary or any
assistant secretary of such Issuer. Each such certificate shall include the
statements provided for in Section 11.5 if and to the extent required by the
provisions of such Section 11.5. One of the officers signing each Officers'
Certificate given pursuant to Section 4.3, shall be the principal executive,
financial or accounting officer of each such Issuer.
"Opinion of Counsel" means an opinion in writing signed by the
chief counsel of each Issuer or by such other legal counsel who may be an
employee of or counsel to such Issuer and who shall be reasonably
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 11.5, if and to the extent required by the provisions
of such Section 11.5.
"original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt
security (as set forth in the case of an Original Issue Discount Security on
the face of such Security).
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof pursuant to
Article Five.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under this
Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which
the provisions of Article Ten hereof shall not be applicable), or
portions thereof, for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than either of the Issuers) or shall have
been set aside, segregated and held in trust by an Issuer for the
Holders of such Securities (if such Issuer shall act as the Issuers' own
paying agent), provided that, if such Securities, or portions thereof,
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such Security is a
legal, valid and binding obligation of the Issuers).
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the portion of
the principal amount thereof that would be due and payable as of the date of
such determination (as certified by the Issuers to the Trustee) upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by each of the Issuers or their agents
upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if
any, on the Securities of such series are payable as determined in accordance
with Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption
at the option of the Issuers, upon any purchase or exchange at the option of
the Issuers or the holder of such debt security and upon any acceleration of
the maturity of such debt security).
"principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration
of this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary, and (b) any Subsidiary of TEL which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by TEL (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that TEL may not designate any such Subsidiary to be a
Restricted Subsidiary if TEL would thereby breach any covenant or agreement
herein contained (on the assumptions that any outstanding Indebtedness of
such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Senior Indebtedness" with respect to either Issuer means
Indebtedness of such Issuer outstanding at any time (other than the
Indebtedness evidenced by the Securities of any series), except (a) any
Indebtedness as to which, by the terms of the instrument creating or
evidencing such Indebtedness, it is provided that such Indebtedness is not
senior or prior in right of payment to the Securities or is pari passu or
subordinate by its terms in right of payment to the Securities, (b) renewals,
extensions and modifications of any such Indebtedness, (c) any Indebtedness
of such Issuer to a wholly-owned Subsidiary of TEL, (d) interest
accruing after the filing of a petition initiating any proceeding referred to
in Sections 5.1(e) and 5.1(f) unless such interest is an allowed claim
enforceable against such Issuer in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
"Senior Subordinated Indebtedness" of either Issuer means the
Securities and any other Indebtedness of such Issuer that ranks pari passu
with the Securities. Any Indebtedness of an Issuer that is subordinate or
junior by its terms in right of payment to any other Indebtedness of such
Issuer shall be subordinate to Senior Subordinated Indebtedness of such
Issuer unless the instrument creating or evidencing the same or pursuant to
which the same is outstanding specifically provides that such Indebtedness
(i) is to rank pari passu with other Senior Subordinated Indebtedness of such
Issuer and (ii) is not subordinated by its terms to any Indebtedness of such
Issuer which is not Senior Indebtedness of such Issuer.
"Subordinated Indebtedness" of either Issuer means the Securities,
any other Senior Subordinated Indebtedness and any other Indebtedness of such
Issuer that is subordinate or junior in right of payment to Senior
Indebtedness of such Issuer.
"Subsidiary" of any specified Person means any corporation of
which such Person, or such Person and one or more Subsidiaries of such
Person, or any one or more Subsidiaries of such Person, directly or
indirectly own voting securities entitling any one or more of such Persons
and its Subsidiaries to elect a majority of the directors, either at all
times or, so long as there is no default or contingency which permits the
holders of any other class or classes of securities to vote for the election
of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which
this Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of TEL acquired
or organized after the date hereof, provided, however, that such Subsidiary
shall not be a successor, directly or indirectly, to any Restricted
Subsidiary, and (b) any Subsidiary of TEL substantially all the assets of
which consist of stock or other securities of a Subsidiary or Subsidiaries of
the character described in clause (a) of this paragraph, unless and until
such Subsidiary shall have been designated to be a Restricted Subsidiary
pursuant to clause (b) of the definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"vice president," when used with respect to either of the Issuers
or the Trustee, means any vice president, regardless of whether designated by
a number or a word or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions (as set forth
in a Board Resolution or, to the extent established pursuant to rather than
set forth in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities as evidenced by
their execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be
substantially as follows:
This is one of the Securities of the series designated herein
referred to in the within mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Securities of such series
shall bear, in addition to the Trustee's certificate of authentication, an
alternate Certificate of Authentication which shall be substantially as
follows:
This is one of the Securities of the series designated herein
referred to in the within mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the
Securities of each such series shall rank equally and pari passu with the
Securities of each other series, but all Securities issued hereunder shall be
subordinate and junior in right of payment, to the extent and in the manner
set forth in Article Thirteen, to all Senior Indebtedness of the Issuers.
There shall be established in or pursuant to one or more Board Resolutions of
each Issuer (and, to the extent established pursuant to rather than set forth
in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, on which any such interest shall be payable and on which a
record shall be taken for the determination of Holders to whom any such
interest is payable or the method by which such rate or rates or date or
dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of, premium, if any, and interest, if any, on Securities of
the series shall be payable (if other than as provided in Section 3.2)
and the office or agency for the Securities of the series maintained by
the Issuers pursuant to Section 3.2;
(6) the right, if any, of the Issuers to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices (or the method by
which such price or prices shall be determined or both) at which, the
form or method of payment therefor if other than in cash and any terms
and conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series may be so
redeemed, purchased or repaid, in whole or in part pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuers to redeem, purchase or
repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor if
other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve)
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(13) any deleted, modified or additional events of default or
remedies or any deleted, modified or additional covenants with respect
to the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be applicable
to Securities of such series;
(15) any provision relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrete, if any, and the date or dates from or to which
or period or periods during which such original issue discount shall
accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment
of the principal of, premium, if any, and interest, if any, on the
Securities of such series shall be payable;
(17) if other than United States Trust Company of New York is to
act as Trustee for the Securities of such series, the name and Corporate
Trust Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if any,
and interest, if any, on the Securities of such series are to be
determined with reference to an index, the manner in which such amounts
shall be determined;
(19) the terms for conversion or exchange, if any, with respect to
the Securities of such series; and
(20) any other terms of the series.
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolutions or Officers' Certificates referred to above
or as set forth in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by
or pursuant to such Board Resolutions, such Officers' Certificates or in any
such indenture supplemental hereto.
Any such Board Resolutions or Officers' Certificates referred to
above with respect to Securities of any series filed with the Trustee on or
before the initial issuance of the Securities of such series shall be
incorporated herein by reference with respect to Securities of such series
and shall thereafter be deemed to be a part of the Indenture for all purposes
relating to Securities of such series as fully as if such Board Resolutions
or Officers' Certificates were set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuers may deliver Securities of any series executed by each of the Issuers
to the Trustee for authentication together with the applicable documents
referred to below in this Section 2.4, and the Trustee shall thereupon
authenticate and deliver such Securities to, or upon the order, of the
Issuers (contained in the Issuer Order referred to below in this Section 2.4)
or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate, if any, and any other
terms of the Securities of such series shall be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures and
agreed to by the Trustee, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3)
and (4) below only at or before the time of the first request of each Issuer
to the Trustee to authenticate Securities of such series) and (subject to
Section 6.1) shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions provided that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuers to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c)
the maturity date or dates, original issue date or dates, interest rate
or rates, if any, and any other terms of Securities of such series shall
be determined by an Issuer Order or pursuant to such procedures, (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from each of the Issuers or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing and (e) after
the original issuance of the first Security of such series to be issued,
any separate request by the Issuers that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by each such Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolutions, Officers' Certificates or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such series
were established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the
Trustee may reasonably request; and
(4) at the option of the Issuers, either an Opinion of Counsel, or
a letter from legal counsel addressed to the Trustee permitting it to
rely on an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have
been duly authorized and established in conformity with the
provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established
in conformity with the provisions of this Indenture, and, in the
case of an offering that is not underwritten, certain terms of the
Securities of such series have been established pursuant to Board
Resolutions, Officers' Certificates or a supplemental indenture in
accordance with this Indenture, and when such other terms as are to
be established pursuant to procedures set forth in an Issuer Order
shall have been established, all such terms will have been duly
authorized by the Issuer and will have been established in
conformity with the provisions of this Indenture;
(c) when the Securities of such series have been executed by
the Issuers and the Securities of such series have been
authenticated by the Trustee in accordance with the provisions of
this Indenture and delivered to and duly paid for by the purchasers
thereof, they will have been duly issued under this Indenture and
will be valid and legally binding obligations of each of the
Issuers, enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by each of the Issuers of, and
the performance by each Issuer of its obligations under, the
Securities of such series will not contravene any provision of
applicable law or the articles of incorporation or bylaws of each
such Issuer or any agreement or other instrument binding upon each
such Issuer or any of its Subsidiaries that is material to each
such Issuer and its Subsidiaries, considered as one enterprise, or,
to such counsel's knowledge after the inquiry indicated therein
(which shall be reasonable), any judgment, order or decree of any
governmental agency or any court having jurisdiction over each such
Issuer or any Subsidiary, and no consent, approval or authorization
of any governmental body or agency is required for the performance
by each such Issuer of its obligations under the Securities, except
such as are specified and have been obtained and such as may be
required by the securities or blue sky laws of the various states
in connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new
series of Securities created by an indenture supplemental hereto, such
Opinion of Counsel shall also state that all laws and requirements with
respect to the form and execution by the Issuers of the supplemental
indenture with respect to the series of Securities have been complied with,
each of the Issuers has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been executed and delivered
and constitutes the legal, valid and binding obligation of each such Issuer
enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions
as to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the State of
Texas and the federal law of the United States, upon opinions of other
counsel (copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory to the Trustee, in which case the opinion
shall state that such counsel believes that both such counsel and the Trustee
are entitled so to rely. Such counsel may also state that, insofar as such
opinion involves factual matters, such counsel has relied, to the extent such
counsel deems proper, upon certificates of officers of the Issuers and their
Subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section 2.4 if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken by either Issuer, or if the Trustee in good faith by its board of
directors or board of trustees, executive committee or a trust committee of
directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing Holders or
would adversely affect the Trustee's own rights, duties or immunities under
the Securities, this Indenture or otherwise.
If the Issuers shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuers shall execute and the Trustee shall, in
accordance with this Section 2.4 and the Issuer Order with respect to such
series, authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series to be issued in the
form of Global Securities and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions, and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form,
this Security may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be
signed on behalf of each of the Issuers by the chairman of the Board of
Directors, the president, any vice president or the treasurer of such Issuer,
under its corporate seal which may, but need not, be attested by its
secretary or one of its assistant secretaries. Such signatures may be the
manual or facsimile signatures of the present or any future such officers.
The seal of either Issuer may be in the form of a facsimile thereof and may
be impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of a
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of either of the Issuers who shall have signed
any of the Securities shall cease to be such officer before the Security so
signed shall be authenticated and delivered by the Trustee or disposed of by
the Issuers, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to
be such officer of such Issuer; and any Security may be signed on behalf of
such Issuer by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of such Issuer, although at the date
of the execution and delivery of this Indenture any such person was not such
an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities
as shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by the Trustee by the manual signature of
one of its authorized signatories, or its Authenticating Agent, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. The execution of such certificate by the Trustee or its
Authenticating Agent upon any Security executed by the Issuers shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Each reference in this Indenture to
authentication by the Trustee includes authentication by an agent appointed
pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect
to the Securities of any series, if not so established, in denominations of
$1,000 and any integral multiple thereof. The Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of each of the Issuers executing
the same may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and
such interest, if any, shall be payable on the dates, established as
contemplated by Section 2.3.
The Person in whose name any Security of any series is registered
at the close of business on any record date applicable to a particular series
with respect to any interest payment date for such series shall be entitled
to receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuers shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record
date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest) established by notice given by mail by or
on behalf of the Issuers to the Holders of Securities not less than 15 days
preceding such subsequent record date or (b) as determined by such other
procedure as is mutually acceptable to the Issuers and the Trustee. The term
"record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the Securities of such
series established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuers will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Securities of each series and the registration of
transfer of Securities of such series. Each such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times
such register or registers shall be open for inspection and available for
copying by the Trustee.
Upon due presentation for registration of transfer of any Security
of any series at any such office or agency to be maintained for the purpose
as provided in Section 3.2, the Issuers shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if
any, and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to
the Issuers and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series
(other than a Global Security, except as set forth below) may be exchanged
for a Security or Securities of such series having authorized denominations
and an equal aggregate principal amount, upon surrender of such Securities to
be exchanged at the agency of the Issuers that shall be maintained for such
purpose in accordance with Section 3.2.
The Issuers may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuers shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing or publication of notice of redemption of
Securities of such series to be redeemed, (b) any Securities selected, called
or being called for redemption, in whole or in part, except, in the case of
any Security to be redeemed in part, the portion thereof not so to be
redeemed or (c) any Security if the Holder thereof has exercised his right,
if any, to require the Issuers to repurchase such Security in whole or in
part, except the portion of such Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuers that it is
unwilling or unable to continue as Depositary for such Securities or if at
any time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuers shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuers within 90 days after the Issuers receive such notice
or become aware of such ineligibility, the Issuers' election pursuant to
Section 2.3 that such Securities be represented by one or more Global
Securities shall no longer be effective and the Issuers shall execute, and
the Trustee, upon receipt of an Issuer Order for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver Securities of such series in definitive registered form in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities.
The Issuers may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event, the Issuers shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, shall authenticate and deliver, Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities, in exchange for such Global Security
or Securities.
If specified by the Issuers pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part
for Securities of the same series in definitive registered form on such terms
as are acceptable to the Issuers and such Depositary. Thereupon, the Issuers
shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(i) to the Person specified by such Depositary, a new Security
or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuers or an agent of
the Issuers. The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of transfer or exchange
of Securities shall be valid and legally binding obligations of each of the
Issuers, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuers in their
discretion may execute, and upon the written request of the Issuers, the
Trustee shall authenticate and deliver a new Security of the same series,
maturity date, interest rate, if any, and original issue date, bearing a
number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu
of and in substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the
Issuers and to the Trustee and any agent of the Issuers or the Trustee such
security or indemnity as may be required by the Trustee or the Issuers or any
such agent to indemnify and defend and to save each of the Trustee and the
Issuers and any such agent harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuers may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent)
connected therewith. In case any Security which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuers may instead of issuing a
substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if
the applicant for such payment shall furnish to the Issuers and the Trustee
and any agent of the Issuers or the Trustee such security or indemnity as any
of them may require to hold each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Issuers
and the Trustee and any agent of the Issuers or the Trustee evidence to the
Trustee's satisfaction of the destruction, loss or theft of such Security and
of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuers, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights
set forth in) this Indenture equally and proportionately with any and all
other Securities of such series duly authenticated and delivered hereunder.
All Securities shall be held and owned upon the express condition that, to
the extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced, destroyed, lost
or stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuers or any agent of the Issuers or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of all cancelled Securities in accordance with its standard
procedures and shall deliver a certificate of such disposition to the
Company. If either of the Issuers or its agent shall acquire any of the
Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuers may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuers with the concurrence of the Trustee as evidenced by
the execution and authentication thereof. Temporary Securities may contain
such references to any provisions of this Indenture as may be appropriate.
Every temporary Security shall be executed by the Issuers and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuers shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series
may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuers for that purpose pursuant to Section
3.2 and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series and having authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled
to the same benefits under this Indenture as definitive Securities of such
series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuers in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUERS
SECTION 3.1 Payment of Principal and Interest. The Issuers
jointly and severally covenant and agree that they will duly and punctually
pay or cause to be paid the principal of, premium, if any, and interest, if
any, on each of the Securities at the place, at the respective times and in
the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any
of the Securities are Outstanding, the Issuers will maintain in each Place of
Payment, an office or agency where the Securities may be presented for
payment, an office or agency where the Securities may be presented for
registration of transfer and for exchange as provided in this Indenture, and
an office or agency where notices and demands to or upon the Issuers in
respect of the Securities or of this Indenture may be served. In case the
Issuers shall at any time fail to maintain any such office or agency, or
shall fail to give notice to the Trustee of any change in the location
thereof, presentation may be made and notice and demand may be served in
respect of the Securities or of this Indenture at the Corporate Trust Office.
Each of the Issuers hereby initially designates the Corporate Trust Office
for each such purpose and appoints the Trustee as registrar and paying agent
and as the agent upon whom notices and demands may be served with respect to
the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any
accumulation of claims for interest after maturity thereof, the Issuers will
not directly or indirectly extend or consent to the extension of the time for
the payment of any claim for interest on any of the Securities and will not
directly or indirectly be a party to or approve any such arrangement by the
purchase or funding of said claims or in any other manner; provided, however,
that this Section 3.3 shall not apply in any case where an extension shall be
made pursuant to a plan proposed by the Issuer to the Holders of all
Securities of any series then Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office.
The Issuers, whenever necessary to avoid or fill a vacancy in the office of
the Trustee, will appoint, in the manner provided in Section 6.10, a Trustee,
so that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (1) If the Issuers
shall appoint a paying agent other than the Trustee, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which
such paying agent shall agree with the Trustee, subject to the provisions of
this Section 3.5,
(i) that it will hold all sums held by it as such paying agent for
the payment of the principal of or interest, if any, on the Securities
(whether such sums have been paid to it by the Issuers or by any other
obligor on the Securities) in trust for the benefit of the Holders of
the Securities and the Trustee; and
(ii) that it will give the Trustee notice of any failure by the
Issuers (or by any other obligor on the Securities) to make any payment
of the principal of, premium, if any, or interest, if any, on the
Securities when the same shall be due and payable; and
(iii) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(2) If the Issuers shall act as their own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal, premium, if
any, or interest, if any, so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Issuers (or by any
other obligor under the Securities) to make any payment of the principal of,
premium, if any, or interest, if any, on the Securities when the same shall
become due and payable.
(3) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuers may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder,
as required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(4) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as
provided in this Section 3.5 is subject to Sections 10.3 and 10.4.
(5) Whenever the Issuers shall have one or more paying agents, they
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a paying agent a sum sufficient to pay the
principal, premium, if any, or interest, if any, so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, if any, or interest, if any, and (unless such paying agent is the
Trustee) the Issuers will promptly notify the Trustee of its action or
failure so to act.
SECTION 3.6 Condition for Release of TEC. TEC may, by
supplemental indenture, be released from its obligations under this Indenture
and the Securities, without the consent of the holders of the Securities of
any series, if the 12-1/2% Senior Subordinated Discount Notes due 1997 and
the 9-3/4% Senior Subordinated Discount Notes due 2000 issued by TEC are no
longer outstanding or if TEL or any successor to TEL has assumed the
obligations of TEC under such notes.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUERS AND THE TRUSTEE
SECTION 4.1 Issuers to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuers and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of
the names and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January
1 and July 1, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuers of any such
request,
provided that if and so long as the Trustee shall be the registrar for
such series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to
it as provided in Section 4.1, and (ii) received by it in the capacity of
registrar or paying agent for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to
the Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application,
and such application states that the applicants desire to communicate with
other Holders of Securities of a particular series (in which case the
applicants must all hold Securities of such series) or with Holders of all
Securities with respect to their rights under this Indenture or under such
Securities and such application is accompanied by a copy of the form of proxy
or other communication which such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or of all Securities, as the case may be,
whose names and addresses appear in the information preserved at the
time by the Trustee, in accordance with the provisions of subsection (a)
of this Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or of all Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Issuers and the Trustee that neither the Issuers
nor the Trustee nor any agent of the Issuers or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section 4.2, regardless of the source
from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made
under such subsection (b).
SECTION 4.3 Reports by the Issuers. Each of the Issuers
covenants:
(a) to file with the Trustee, within 15 days after such Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe), if any, which such Issuer
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if TEL is not required to file
information, documents or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act
in respect of a debt security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by such Issuer with the conditions and covenants
provided for in this Indenture as may be required from time to time by
such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to the
extent provided in Section 4.4(c), such summaries of any information,
documents and reports required to be filed by such Issuer pursuant to
subsections (a) and (b) of this Section 4.3 as may be required to be
transmitted to such Holders by rules and regulations prescribed from
time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial
officer of such Issuer or principal accounting officer as to his
knowledge of such Issuer's compliance with all conditions and covenants
under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act of 1939
at the times and in the manner provided pursuant thereto. To the extent that
any such report is required by the Trust Indenture Act of 1939 with respect
to any 12 month period, such report shall cover the 12 month period ending
July 15 and shall be transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuers and be filed by
the Trustee with each stock exchange upon which the Securities of any
applicable series are listed and also with the Commission. The Issuers agree
to promptly notify the Trustee with respect to any series when and as the
Securities of such series become admitted to trading on any national
securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events (whatever the reason for such Event of Default and whether
it shall be occasioned by the provisions of Article Thirteen or otherwise),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the Board Resolutions or supplemental
indenture establishing such series of Securities or in the form of Security,
for such series:
(1) default in the payment of the principal of or premium, if any,
of the Securities of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or
otherwise; or
(2) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(3) default in the payment or satisfaction of any sinking fund or
other purchase obligation with respect to Securities of such series, as
and when such obligation shall become due and payable; or
(4) failure on the part of either of the Issuers duly to observe
or perform any other of the covenants or agreements on the part of such
Issuer in the Securities of such series or in this Indenture continued
for a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by
certified or registered mail to both of the Issuers by the Trustee, or
to both of the Issuers and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then
Outstanding; or
(5) without the consent of such Issuer a court having jurisdiction
shall enter an order for relief, in the case of TEC, under the
Bankruptcy Code, or, in the case of TEL, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands, or without the
consent of such Issuer a court having jurisdiction shall enter a
judgment, order or decree adjudging such Issuer a bankrupt or insolvent,
or enter an order for relief for reorganization, arrangement, adjustment
or composition of or in respect of TEC under the Bankruptcy Code or
applicable state insolvency law, or, in the case of TEL, any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, and
the continuance of any such judgment, order or decree is unstayed and in
effect for a period of 90 consecutive days; or
(6) either of the Issuers shall institute proceedings for entry of
an order for relief with respect to such Issuer, in the case of TEC,
under the Bankruptcy Code, or, in the case of TEL, any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or
for an adjudication of insolvency, or shall consent to the institution
of bankruptcy or insolvency proceedings against it, or shall file a
petition seeking, or seek or consent to reorganization, arrangement,
composition or relief under, in the case of TEC, the Bankruptcy Code or
any applicable state law, or, in the case of TEL, any applicable
bankruptcy, insolvency or other similar law of the Cayman Islands, or
shall consent to the filing of such petition or to the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator or
similar official of either Issuer or of substantially all of its
property, or either Issuer shall make a general assignment for the
benefit of creditors as recognized under, in the case of TEC, the
Bankruptcy Code, or, in the case of TEL, any applicable bankruptcy,
insolvency or other similar law of the Cayman Islands; or
(7) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by either of the Issuers or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money
borrowed by either of the Issuers, whether such Indebtedness exists on
the date hereof or shall hereafter be created, which default shall have
resulted in such Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the
expiration of any applicable grace periods and the presentation of any
debt instruments, if required), if the aggregate amount of all such
Indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $20,000,000,
without each such default and acceleration having been rescinded or
annulled within a period of 20 days after there shall have been given by
certified or registered mail to both of the Issuers by the Trustee, or
to both of the Issuers and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then
Outstanding, a written notice specifying each such default and requiring
the Issuers to cause each such default and acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(8) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series
then Outstanding occurs and is continuing, then and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to both of the Issuers (and to the Trustee
if given by Securityholders), may declare the principal (or, if the
Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all the Securities of such series and the interest, if any,
accrued thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
notwithstanding anything to the contrary contained in this Indenture or in
the Securities of such series. This provision, however, is subject to the
condition that, if at any time after the unpaid principal amount (or such
specified amount) of the Securities of such series shall have been so
declared due and payable and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Issuers shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest, if any, upon all of the Securities
of such series and the principal of any and all Securities of such series
which shall have become due otherwise than by acceleration (with interest on
overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the
rate borne by the Securities of such series to the date of such payment or
deposit) and the reasonable compensation, disbursements, expenses and
advances of the Trustee and all other amounts due the Trustee under Section
6.6, and any and all defaults under this Indenture, other than the nonpayment
of such portion of the principal amount of and accrued interest, if any, on
Securities of such series which shall have become due by acceleration, shall
have been cured or shall have been waived in accordance with Section 5.7 or
provision deemed by the Trustee to be adequate shall have been made therefor,
then and in every such case the Holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding, by written notice
to both of the Issuers and to the Trustee, may rescind and annul such
declaration and its consequences; but no such rescission and annulment shall
extend to or shall affect any subsequent default, or shall impair any right
consequent thereon. If any Event of Default with respect to either of the
Issuers specified in Section 5.1(e) or 5.1(f) occurs, all unpaid principal
amount (or, if the Securities of any series then Outstanding are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of each such series) and accrued interest on all
Securities of each series then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the
Trustee or any Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Issuers, the Trustee and the Securityholders shall be restored respectively
to their several positions and rights hereunder, and all rights, remedies and
powers of the Issuers, the Trustee and the Securityholders shall continue as
though no such proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1
(a), (b) or (c), the Trustee shall not be charged with knowledge of any Event
of Default unless written notice thereof shall have been given to a
Responsible Officer by an Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The
Issuers covenant that (a) if default shall be made in the payment of any
installment of interest upon any of the Securities of any series then
Outstanding as and when the same shall become due and payable, and such
default shall have continued for a period of 60 days, or (b) if default shall
be made in the payment of the principal of any of the Securities of such
series as and when the same shall have become due and payable, whether at
maturity of the Securities of such series or upon redemption or by
declaration or otherwise, then, upon demand of the Trustee, the Issuers will
pay to the Trustee, for the benefit of the Holders of the Securities, the
whole amount that then shall have become due and payable on all such
Securities of such series for principal or interest, if any, or both, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the
overdue installments of interest, if any, at the rate borne by the Securities
of such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and any expenses or liabilities incurred by the Trustee hereunder other than
through its negligence or bad faith.
If the Issuers shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against either or both of the
Issuers or any other obligor on the Securities of such series and collect in
the manner provided by law out of the property of either or both of the
Issuers or any other obligor on the Securities of such series, wherever
situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of either of the Issuers or any other obligor on the
Securities of any series then Outstanding under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or if a receiver or trustee or
similar official shall have been appointed for the property of either of the
Issuers or such other obligor, or in the case of any other similar judicial
proceedings relative to either of the Issuers or other obligor upon the
Securities of such series, or to the creditors or property of either of the
Issuers or such other obligor, the Trustee, irrespective of whether the
principal of the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the
Securityholders allowed in such judicial proceedings relative to such Issuer
or any other obligor on the Securities of such series, its or their
creditors, or its or their property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute
the same after the deduction of its charges and expenses, and any receiver,
assignee or trustee or similar official in bankruptcy or reorganization is
hereby authorized by each of the Securityholders to make such payments to the
Trustee, and, if the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due it for
compensation and expenses or otherwise pursuant to Section 6.6, including
counsel fees and expenses incurred by it up to the date of such distribution.
To the extent that such payment of reasonable compensation, expenses and
counsel fees and expenses out of the estate in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, moneys,
securities and other property which the Holders of the Securities of such
series may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit
of the Holders of the Securities of the series in respect of which such
judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any
moneys collected by the Trustee pursuant to Section 5.2 with respect to
Securities of any series then Outstanding shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee pursuant to Section 6.6 except as a result
of its negligence or bad faith;
SECOND: If the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of
interest, if any, on the Securities of such series, in the order of the
maturity of the installments of such interest, if any, with interest (to
the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest, if any, at the rate borne by the
Securities of such series, such payment to be made ratably to the
Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such
series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities of
such series for principal and interest, if any, with interest on the
overdue principal and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if any,
at the rate borne by the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amounts so due and
unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of
principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the
Issuers, their respective successors or assigns, or to whomsoever may be
lawfully entitled to receive the same.
No claim for interest which in any manner at or after maturity
shall have been transferred or pledged separate or apart from the Securities
to which it relates, or which in any manner shall have been kept alive after
maturity by an extension (otherwise than pursuant to an extension made
pursuant to a plan proposed by the Issuers to the Holders of all Securities
of any series then Outstanding), purchase, funding or otherwise by or on
behalf or with the consent or approval of the Issuers shall be entitled, in
case of a default hereunder, to any benefit of this Indenture, except after
prior payment in full of the principal of all Securities of any series then
Outstanding and of all claims for interest not so transferred, pledged, kept
alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any
Securities of any series then Outstanding shall have any right by virtue of
or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee or similar
official, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless the Holders of not
less than 25% in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request to the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the Holder of every Security of such series
with every other Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture or of the
Securities to affect, disturb or prejudice the rights of any other Holder of
such Securities of such series, or to obtain or seek to obtain priority over
or preference as to any other such Holder, or to enforce any right under this
Indenture or the Securities, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such
series.
Notwithstanding any other provisions in this Indenture, but subject
to Article Thirteen, the right of any Holder of any Security to receive
payment of the principal of, premium, if any, and interest, if any, on such
Security, on or after the respective due dates expressed in such Security, or
to institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of
such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of
Default hereunder, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or
by proceedings in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee
or the Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder
to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.4, every power and remedy given by
this Article Five or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders. The Holders of a majority in aggregate
principal amount of the Securities of any series then Outstanding shall have
the right to direct the time, method, and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to Securities of such series; provided,
however, that (subject to the provisions of Section 6.1) the Trustee shall
have the right to decline to follow any such direction if the Trustee shall
determine upon advice of counsel that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors, its executive committee, or a trust committee of directors or
Responsible Officers or both shall determine that the action or proceeding so
directed would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Securities of any series then
Outstanding may on behalf of the Holders of all of the Securities of such
series waive any past default or Event of Default hereunder and its
consequences except a default in the payment of interest, if any, on, or the
principal of, the Securities of such series. Upon any such waiver the
Issuers, the Trustee and the Holders of the Securities of such series shall
be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by this
Section 5.7, said default or Event of Default shall for all purposes of the
Securities and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days
after the occurrence of a default, with respect to Securities of any series
then Outstanding, mail to all Holders of Securities of such series, as the
names and the addresses of such Holders appear upon the Securities register,
notice of all defaults known to the Trustee with respect to such series,
unless such defaults shall have been cured before the giving of such notice
(the term "defaults" for the purpose of this Section 5.8 being hereby defined
to be the events specified in clauses (a), (b), (c), (d), (e), (f), (g) and
(h) of Section 5.1, not including periods of grace, if any, provided for
therein and irrespective of the giving of the written notice specified in
said clause (d) or (g) but in the case of any default of the character
specified in said clause (d) or (g) no such notice to Securityholders shall
be given until at least 60 days after the giving of written notice thereof to
the Issuers pursuant to said clause (d) or (g), as the case may be);
provided, however, that, except in the case of default in the payment of the
principal of or interest, if any, on any of the Securities, or in the payment
or satisfaction of any sinking fund or other purchase obligation, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the cost of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.9 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount
of the Securities of any series then Outstanding, or to any suit instituted
by any Securityholders for the enforcement of the payment of the principal of
or interest, if any, on any Security against the Issuers on or after the due
date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a series has occurred (which has
not been cured or waived) the Trustee shall exercise with respect to such
series of Securities such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.7 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section
6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Issuers
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
or Issuer Order (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors of an
Issuer may be evidenced to the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.7), unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Issuers or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuers upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(h) The Trustee shall not be charged with knowledge of any default
or Event of Default with respect to a series of Securities unless either (i)
a Responsible Officer of the Trustee assigned to the Corporate Trust Office
of the Trustee (or any successor division or department of the Trustee) shall
have actual knowledge of such default or Event of Default or (ii) written
notice of such default or Event of Default shall have been given to the
Trustee by either of the Issuers or any other obligor on such series of
Securities or by any Holder of Securities of such series; and
(i) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuers, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, of the
Securities or of any prospectus used to sell the Securities. The Trustee
shall not be accountable for the use or application by the Issuers of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and, subject to Sections 6.8 and 6.13, may otherwise deal with
each Issuer and receive, collect, hold and retain collections from each
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuers or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuers jointly and severally covenant and agree to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Issuers and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuers jointly and
severally covenant and agree to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Issuers also jointly and severally covenant to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense, including taxes (other
than taxes based on the income of the Trustee), incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance
or administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The obligations of the
Issuers under this Section 6.6 to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the Trustee and
shall not be subordinate to the payment of Senior Indebtedness pursuant to
Article Thirteen and Article Fourteen, respectively. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities, and
the Securities are hereby subordinated to such senior claim. When the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with Article Five hereof,
the expenses (including the reasonable fees and expenses of its counsel) and
the compensation for the service in connection therewith are intended to
constitute expenses of administration under any bankruptcy law. The
provisions of this Section 6.6 shall survive the resignation or removal of
the Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee, and
such certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of
Section 310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have
a combined capital and surplus of at least $25,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act of 1939 regarding
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any state or the
District of Columbia having a combined capital and surplus of at least
$25,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by federal, state
or District of Columbia authority, or a corporation or other Person permitted
to act as trustee by the Commission. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. No obligor upon the Securities or any Affiliate
of such obligor shall serve as trustee upon the Securities. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.9, the Trustee shall resign immediately in the manner and
with the effect specified in Section 6.10.
A different Trustee may be appointed by the Issuers for any series
of Securities prior to the issuance of such Securities. If the initial
Trustee for any series of Securities is to be a trustee other than United
States Trust Company of New York, the Issuers and such Trustee shall, prior
to the issuance of such Securities, execute and deliver an indenture
supplemental hereto, which shall provide for the appointment of such Trustee
as Trustee for the Securities of such series and shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuers. Upon
receiving such notice of resignation, the Issuers shall promptly appoint a
successor trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors of each Issuer, one copy of which instrument shall be delivered to
the resigning trustee and one copy to the successor trustee or trustees. If
no successor trustee shall have been so appointed with respect to any series
and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions
of Section 5.9, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuers or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at least
six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuers or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuers may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of each Issuer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Article Five, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee
with respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuers the
evidence provided for in Section 7.1 of the action in that regard taken by
the Securityholders. If no successor trustee shall have been so appointed
with respect to any series and have accepted appointment within 30 days after
the delivery of such evidence of removal, the Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions
of Article Five, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in
Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuers and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuers or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 10.4, pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuers shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuers, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable
series shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor Trustee
with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor
Trustee, and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such trustees co-
trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided
in this Section 6.11, the Issuers shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuers
fail to give such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Issuers.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation shall be qualified under
the provisions of Section 6.8 and eligible under the provisions of Section
6.9, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that
the certificate of the Trustee shall have; provided, that the right to adopt
the certificate of authentication of any predecessor Trustee or to
authenticate Securities of any series in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.13 Preferential Collection of Claims Against the
Issuers. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act of 1939, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to the
extent indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuers an authenticating agent
(the "Authenticating Agent") which shall be authorized to act on behalf of
the Trustee to authenticate Securities, including Securities issued upon
exchange, registration of transfer, partial redemption or pursuant to Section
2.9. Securities of each such series authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent for such series
and a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
of America or of any state or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $25,000,000 (determined as provided in Section 6.9 with
respect to the Trustee) and subject to supervision or examination by federal
or state authority.
Any corporation into which any Authenticating Agent may be merged
or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which
it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the Trustee
and to the Issuers. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Issuers.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 6.14 with
respect to one or more series of Securities, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Issuers and
the Issuers shall provide notice of such appointment to all Holders of
Securities of such series in the manner and to the extent provided in Section
11.4. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuers agree to pay to the
Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series
shall have no responsibility or liability for any action taken by it as such
at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Issuers, if made in the manner
provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution
is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuers, the
Trustee and any agent of the Issuers or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of this
Indenture, interest, if any, on such Security and for all other purposes; and
neither the Issuers nor the Trustee nor any agent of the Issuers or the
Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuers Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned
by an Issuer or by any other obligor on the Securities with respect to which
such determination is being made or by any Affiliate of either of the Issuers
or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which a Responsible
Officer of the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not either Issuer or any other obligor upon the Securities or any
Affiliate of an Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuers shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Issuers to be owned or held by or for the account of any of
the above-described Persons; and, subject to Sections 6.1 and 6.2, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities
not listed therein are Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action, any
Holder of a Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article Seven,
revoke such action so far as concerns such Security provided that such
revocation shall not become effective until three Business Days after such
filing. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange
or substitution therefor or on registration of transfer thereof, irrespective
of whether or not any notation in regard thereto is made upon any such
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuers, the Trustee and the Holders of all the
Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuers
may, but shall not be obligated to, establish a record date for the purpose
of determining the Persons entitled to (i) waive any past default with
respect to the Securities of such series in accordance with Section 5.7 of
the Indenture, (ii) consent to any supplemental indenture in accordance with
Section 8.2 of the Indenture or (iii) waive compliance with any term,
condition or provision of any covenant hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and any
such Persons, shall be entitled to waive any such past default, consent to
any such supplemental indenture or waive compliance with any such term,
condition or provision, whether or not such Holder remains a Holder after
such record date; provided, however, that unless such waiver or consent is
obtained from the Holders, or duly designated proxies, of the requisite
principal amount of Outstanding Securities of such series prior to the date
which is the 180th day after such record date, any such waiver or consent
previously given shall automatically and without further action by any Holder
be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuers, when authorized by a Board Resolution of each
Issuer (which resolutions may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of the execution thereof) for
one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another Person to either or both
of the Issuers, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of such
Issuer or Issuers pursuant to Article Nine;
(c) to add to the covenants of either or both of the Issuers such
further covenants, restrictions, conditions or provisions as the Issuers
and the Trustee shall consider to be for the protection of the Holders
of all or any series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the protection of less than all
series of Securities, stating that the same are expressly being included
solely for the protection of such series), and to make the occurrence,
or the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that
in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or
in any supplemental indenture, or to make any other provisions as the
Issuers may deem necessary or desirable, provided, however, that no such
action shall materially adversely affect the interests of the Holders of
the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in
coupon form (including Securities registrable as to principal only) and
to provide for exchangeability of such Securities for the Securities
issued hereunder in fully registered form and to make all appropriate
changes for such purpose;
(g) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act of 1939,
or under any similar federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act of 1939, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act of 1939 as
in effect at the date as of which this instrument was executed or any
corresponding provision provided for in any similar federal statute
hereafter enacted;
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than United States Trust Company of New
York as Trustee for a series of Securities and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the
provisions hereof as may be necessary or desirable to provide for the
denomination of Securities in foreign currencies which shall not
adversely affect the interests of the Holders of the Securities in any
material respect;
(j) to modify the covenants or Events of Default of the Issuers
solely in respect of, or add new covenants or Events of Default of the
Issuers that apply solely to, Securities not Outstanding on the date of
such supplemental indenture;
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11; and
(l) to evidence and provide for the release of TEC from its
obligations under this Indenture and the Securities in accordance with
Section 3.6.
The Trustee is hereby authorized to join with the Issuers in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities then Outstanding, notwithstanding any of the provisions of Section
8.2.
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Article Seven)
of the Holders of not less than a majority in aggregate principal amount of
the Securities then Outstanding of any series affected by such supplemental
indenture, the Issuers, when authorized by a Board Resolution of each Issuer
(which resolutions may provide general terms or parameters for such action
and may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Holders of the Securities of
such series; provided, that no such supplemental indenture shall (a) extend
the stated final maturity of the principal of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest, if any, thereon (or, in the case of an Original Issue Discount
Security, reduce the rate of accretion of original issue discount thereon),
or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Issuers thereof (or the time at
which any such redemption, repayment or purchase may be made), or make the
principal thereof (including any amount in respect of original issue
discount), or interest, if any, thereon payable in any coin or currency other
than that provided in the Securities or in accordance with the terms of the
Securities, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy in each case
pursuant to Article Five, or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment or purchase at the option of the
Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security
so affected. No consent of any Holder of any Security shall be necessary
under this Section 8.2 to permit the Trustee and the Issuers to execute
supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series, with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
Upon the request of the Issuers, accompanied by a copy of a
resolution of the Boards of Directors of each of the Issuers (which
resolutions may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order) certified by the secretary or
an assistant secretary of such Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuers in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may at its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 8.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuers and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuers (or the Trustee at the request and expense of the Issuers) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuers to
give such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and shall be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuers and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and shall be deemed to
be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article
Eight complies with the applicable provisions of this Indenture and that all
conditions precedent to the execution and delivery of such supplemental
indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to
any action taken by Securityholders. If the Issuers or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuers, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Issuers, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuers May Consolidate, etc., on Certain Terms.
Subject to the provisions of Section 9.2, nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation or merger of
either of the Issuers with or into any other Person or Persons (whether or
not affiliated with such Issuer), or successive consolidations or mergers in
which such Issuer or its respective successor or successors shall be a party
or parties, or shall prevent any sale, lease, exchange or other disposition
of all or substantially all the property and assets of the Issuers to any
other Person (whether or not affiliated with such Issuer) authorized to
acquire and operate the same; provided, however, each Issuer hereby covenants
and agrees, that any such consolidation, merger, sale, lease, exchange or
other disposition shall be upon the conditions that (a) immediately after
giving effect to such consolidation, merger, sale, lease, exchange or other
disposition of the Person (whether such Issuer or such other Person) formed
by or surviving any such consolidation or merger, or to which such sale,
lease, exchange or other disposition shall have been made, no Event of
Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than such Issuer) formed by or surviving any such
consolidation or merger, or to which such sale, lease, exchange or other
disposition shall have been made, shall be, in the case of the Issuer, a
corporation or partnership organized under the laws of the United States of
America, any state thereof or the District of Columbia or the Cayman Islands
or any political subdivision thereof; and (c) the due and punctual payment of
the principal of and interest, if any, on all the Securities, according to
their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by such Issuer
shall be expressly assumed, by supplemental indenture satisfactory in form to
the Trustee executed and delivered to the Trustee, by the Person (if other
than such Issuer) formed by such consolidation, or into which such Issuer
shall have been merged, or by the Person which shall have acquired or leased
such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of
any such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of either of the Issuers and upon the
assumption by the successor Person, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of, premium, if any, and interest, if
any, on all of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by such
Issuer, such successor Person shall succeed to and be substituted for such
Issuer, with the same effect as if it had been named herein as the party of
the first part, and such Issuer (including any intervening successor to such
Issuer which shall have become the obligor hereunder) shall be relieved of
any further obligation under this Indenture and the Securities; provided,
however, that in the case of a sale, lease, exchange or other disposition of
the property and assets of such Issuer (including any such intervening
successor), such Issuer (including any such intervening successor) shall
continue to be liable on its obligations under this Indenture and the
Securities to the extent, but only to the extent, of liability to pay the
principal of and interest, if any, on the Securities at the time, places and
rate prescribed in this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in
the name of such Issuer, any or all of the Securities issuable hereunder
which theretofore shall not have been signed by such Issuer and delivered to
the Trustee; and, upon the order of such successor Person instead of such
Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Issuers to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of either of the Issuers, such changes in phraseology and form (but
not in substance) may be made in the Securities, thereafter to be issued, as
may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, shall receive an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, lease, exchange or other disposition and any such assumption
complies with the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at
any time (i) the Issuers shall have paid or caused to be paid the principal
of, premium, if any, and interest, if any, on all the Securities Outstanding
(other than Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9) as and when the same
shall have become due and payable, or (ii) the Issuers shall have delivered
to the Trustee for cancellation all Securities theretofore authenticated
(other than Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9); and if, in any such
case, the Issuers shall also pay or cause to be paid all other sums payable
hereunder by the Issuers (including all amounts payable to the Trustee
pursuant to Section 6.6), then this Indenture shall cease to be of further
effect, and the Trustee, on demand of the Issuers accompanied by an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the satisfaction and discharge contemplated by this
provision have been complied with, and at the cost and expense of the
Issuers, shall execute proper instruments acknowledging such satisfaction and
discharging this Indenture. The Issuers agree to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred, and to
compensate the Trustee for any services thereafter reasonably and properly
rendered, by the Trustee in connection with this Indenture or the Securities.
(b) If at any time (i) the Issuers shall have paid or caused to be
paid the principal of, premium, if any, and interest, if any, on all the
Securities of any series Outstanding (other than Securities of such series
which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.9) as and when the same shall have become due
and payable, or (ii) the Issuers shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated (other
than any Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9), or (iii) in
the case of any series of Securities with respect to which the exact amount
described in clause (B) below can be determined at the time of making the
deposit referred to in such clause (B), (A) all the Securities of such series
not theretofore delivered to the Trustee for cancellation shall have become
due and payable, or by their terms are to become due and payable within one
year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (B)
the Issuers shall have irrevocably deposited or caused to be deposited with
the Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such series,
cash in an amount (other than moneys repaid by the Trustee or any paying
agent to the Issuers in accordance with Section 10.4) or non-callable, non-
prepayable bonds, notes, bills or other similar obligations issued or
guaranteed by the United States government or any agency thereof the full and
timely payment of which are backed by the full faith and credit of the United
States ("U.S. Government Obligations"), maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (1) the
principal of, premium, if any, and interest, if any, on all Securities of
such series on each date that such principal of, premium, if any, or
interest, if any, is due and payable, and (2) any mandatory sinking fund
payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
then the Issuers shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such series on the date of the deposit
referred to in clause (B) above and the provisions of this Indenture with
respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (iii) of this Section 10.1(b), as to (I)
rights of registration of transfer and exchange of Securities of such series,
(II) rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (III) rights of Holders of Securities of such
series to receive payments of principal thereof and premium, if any, and
interest, if any, thereon upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders of Securities of
such series to receive mandatory sinking fund payments thereon, if any, when
due, (IV) the rights, obligations, duties and immunities of the Trustee
hereunder, (V) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (VI) the obligations of the Issuers
under Section 3.2 with respect to Securities of such series) and the Trustee,
on demand of the Issuers accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent contemplated
by this provision have been complied with, and at the cost and expense of the
Issuers, shall execute proper instruments acknowledging the same.
(c) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities with respect to
which the exact amount described in subparagraph (A) below can be determined
at the time of making the deposit referred to in such subparagraph (A), the
Issuers shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series on the 91st day after the date of the
deposit referred to in subparagraph (A) below, and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities of such series, (iii) rights of Holders
of Securities of such series to receive payments of principal thereof,
premium, if any, and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the
Holders of Securities of such series to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the Issuers
under Section 3.2 with respect to Securities of such series) and the Trustee,
on demand of the Issuers accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent contemplated
by this provision have been complied with, and at the cost and expense of the
Issuers, shall execute proper instruments acknowledging the same, if
(A) with reference to this provision the Issuers have irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Securities of such series (1)
cash in an amount, or (2) U.S. Government Obligations, maturing as to
principal and interest, if any, at such times and in such amounts as
will insure the availability of cash, or (3) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (I) the principal of, premium,
if any, and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and
(II) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which either
of the Issuers is a party or by which either of the Issuers is bound;
and
(C) the Issuers have delivered to the Trustee an Opinion of
Counsel based on the fact that (1) the Issuers have received from, or
there has been published by, the Internal Revenue Service a ruling or
(2), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect that,
and such opinion shall confirm that, the Holders of the Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 10.4, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 10.1 shall be held
in trust, and such moneys and all moneys from such U.S. Government
Obligations shall be applied by it to the payment, either directly or through
any paying agent (including the Issuers acting as their own paying agent), to
the Holders of the particular Securities of such series for the payment or
redemption of which such moneys and U.S. Government Obligations have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest, if any, but such moneys and U.S. Government
Obligations need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuers, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of, premium, if any, or
interest, if any, on any Security of any series and not applied but remaining
unclaimed for two years after the date upon which such principal, premium, if
any, or interest, if any, shall have become due and payable, shall, upon the
written request of the Issuers and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuers by the Trustee for such series or such paying agent and
the Holder of the Securities of such series shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuers for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuers shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuers Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of either of the Issuers or any
partner of either of the Issuers or of any successor, either directly or
through the Issuers or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and their successors and the Holders of
the Senior Indebtedness and the Holders of the Securities, any legal or
equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for
the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuers shall bind their successors and
assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuers, Trustee and Holders
of Securities. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the
Holders of Securities to or on the Issuers, or as required pursuant to the
Trust Indenture Act of 1939, may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed, in the case of TEC (until another address of TEC is filed
by TEC with the Trustee), to Triton Energy Corporation, 0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, Attention: Chairman of the
Board, and in the case of TEL (until another address of TEL is filed by TEL
with the Trustee), to Triton Energy Limited, Caledonian House, Xxxx Street,
P.O. Box 1043, Xxxxxx Town, Grand Cayman, Cayman Islands. Any notice,
direction, request or demand by the Issuers or any Holder of Securities to or
upon the Trustee shall be deemed to have been sufficiently given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Trustee
is filed by the Trustee with the Issuer) to United States Trust Company of
New York, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
______________________, _______________, _______________, Attention:
Corporate Trust Department.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuers
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuers to the Trustee to take any action under any of the provisions of this
Indenture, or as required pursuant to the Trust Indenture Act of 1939, the
Issuers shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture (other
than a certificate provided pursuant to Section 4.3(d)) and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
opinion as to whether or not such covenant or condition has been complied
with, and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of either of
the Issuers may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters, on
information with respect to which is in the possession of the Issuers, upon
the certificate, statement or opinion of or representations by an officer or
officers of such Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous.
Any certificate, statement or opinion of an officer of either of
the Issuers or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of either of the Issuers, unless such
officer or counsel, as the case may be, knows that the certificate or opinion
or representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of principal of or interest, if any, on the Securities
of any series or the date fixed for redemption, purchase or repayment of any
such Security shall not be a Business Day, then payment of interest, if any,
premium, if any, or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, purchase or
repayment, and, in the case of payment, no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND
FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Submission to Jurisdiction. TEL hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and of the
courts of the United States of America having jurisdiction in the State of
New York for the purpose of any legal action or proceeding in any such court
with respect to, or arising out of, this Indenture or the Securities. TEL
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 TEL'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 TEL all process in any action, suit or proceedings that may
be brought against TEL 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, TEL hereby designates and appoints, without power of revocation,
the Secretary of State of the State of New York to serve as its agent for
service of process. Nothing contained in this Section 11.9 shall limit the
right of the Holders of the Securities or any of them to take proceedings
against TEL in any other court of competent jurisdiction nor, by virtue of
anything contained herein, shall the taking of proceedings in one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
SECTION 11.10 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified, as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a
whole or in part at the option of the Issuers shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as they shall
appear in the Security register. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price,
(iv) the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory
or optional sinking fund, or both, if such be the case, (viii) whether
interest, if any, (or, in the case of Original Issue Discount Securities,
original issue discount) accrued to the date fixed for redemption will be
paid as specified in such notice and (ix) whether on and after said date
interest, if any, (or, in the case of Original Issue Discount Securities,
original issue discount) thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in
part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuers shall be given by the Issuers or, at the
Issuers' request, by the Trustee in the name and at the expense of the
Issuers.
On or before the redemption date specified in the notice of
redemption given as provided in this Section 12.2, the Issuers will deposit
with the Trustee or with one or more paying agents (or, if the Issuers are
acting as their own paying agent, set aside, segregate and hold in trust as
provided in Section 3.5) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest, if any, to
the date fixed for redemption. The Issuers will deliver to the Trustee at
least 45 days prior to the date fixed for redemption (unless a shorter notice
period shall be satisfactory to the Trustee) an Officers' Certificate stating
the aggregate principal amount of Securities to be redeemed. In case of a
redemption at the election of the Issuers prior to the expiration of any
restriction on such redemption, the Issuers shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuers in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities of any series shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as provided by this Article Twelve, the
Securities or portions of Securities specified in such notice shall become
due and payable on the date and at the place or places stated in such notice
at the applicable redemption price, together with interest, if any accrued to
the date fixed for redemption, and on and after said date (unless the Issuers
shall default in the payment of such Securities at the redemption price,
together with interest, if any, accrued to said date) interest, if any (or,
in the case of Original Issue Discount Securities, original issue discount),
on the Securities or portions of Securities so called for redemption shall
cease to accrue, and such Securities shall cease from and after the date
fixed for redemption (unless an earlier date shall be specified in a Board
Resolution, Officers' Certificate or executed supplemental indenture referred
to in Sections 2.1 and 2.3 by or pursuant to which the form and terms of the
Securities of such series were established) except as provided in Sections
6.5 and 10.4, to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest,
if any, to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by
the Issuers at the applicable redemption price, together with interest, if
any, accrued thereon to the date fixed for redemption; provided that payment
of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such
on the relevant record date subject to the terms and provisions of Sections
2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the
rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the
Issuers shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuers, a new
Security or Securities of such series, and of like tenor, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 45 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by (a) either of the Issuers, or (b) a Person specifically
identified in such written statement as an Affiliate of either of the
Issuers.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is herein referred to as an
"optional sinking fund payment." The date on which a sinking fund payment is
to be made is herein referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuers may at
their option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuers or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuers and delivered to the Trustee
for cancellation pursuant to Section 2.10, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section 12.5, or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Issuers through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuers will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series to be so credited has theretofore been
so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have not
been waived or cured or otherwise ceased to exist) and are continuing, and
(d) stating whether or not the Issuers intend to exercise their right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuers
intend to pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be delivered to
the Trustee in order for the Issuers to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuers shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the
Issuers, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical clause in the second
preceding sentence) specified in this paragraph, if any, shall not constitute
a default but shall constitute, on and as of such date, the irrevocable
election of the Issuers (i) that the mandatory sinking fund payment for such
series due on the next succeeding sinking fund payment date shall be paid
entirely in cash without the option to deliver or credit Securities of such
series in respect thereof, and (ii) that the Issuers will make no optional
sinking fund payment with respect to such series as provided in this Section
12.5.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000, or a lesser sum if the Issuers shall so request with
respect to the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest, if any, to the date fixed for redemption. If such amount
shall be $50,000 or less and the Issuers make no such request, then it shall
be carried over until a sum in excess of $50,000 is available. The Trustee
shall select, in the manner provided in Section 12.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuers) inform the Issuers of the serial numbers of the
Securities of such series (or portions thereof) so selected. The Issuers, or
the Trustee, in the name and at the expense of the Issuers (if the Issuers
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section 12.3) for
the redemption of Securities of such series in part at the option of the
Issuers. The amount of any sinking fund payments not so applied or allocated
to the redemption of Securities of such series shall be added to the next
cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any
and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of,
and interest, if any, on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuers shall pay
to the Trustee in cash or shall otherwise provide for the payment of all
interest, if any, accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default with respect to such series except that, where the giving of
notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided that
it shall have received from the Issuers a sum sufficient for such redemption.
Except as aforesaid, and subject to Article Thirteen, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default known to a Responsible Officer of the Trustee shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the continuance
of such default or Event of Default, be deemed to have been collected under
Article Five and held for the payment of all such Securities. In case such
Event of Default shall have been waived as provided in Article Five or the
default cured on or before the 60th day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. (a)
The Issuers covenant and agree, and each Holder of Securities of each series,
by his acceptance thereof, likewise covenants and agrees, that anything in
this Indenture or the Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of each series
is subordinate and junior in right of payment, to the extent provided herein,
to all Senior Indebtedness, whether outstanding on the date of execution of
this Indenture or thereafter created, incurred or assumed, and that the
subordination is for the benefit of the holders of Senior Indebtedness but
the Securities shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness. The Securities shall rank senior to all existing
and future Indebtedness that is neither Senior Indebtedness nor Senior
Subordinated Indebtedness and only Indebtedness of an Issuer that is Senior
Indebtedness of such Issuer shall rank senior to the Securities in accordance
with the provisions set forth herein.
(b) Subject to Section 13.4, if (i) either Issuer shall default in
the payment of any principal of, premium, if any, or interest, if any, on any
Senior Indebtedness of such Issuer when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, or (ii) any other default shall occur with respect
to Senior Indebtedness of such Issuer and the maturity of such Senior
Indebtedness has been accelerated in accordance with its terms, then, upon
written notice of such default to such Issuer and the Trustee by the holders
of Senior Indebtedness of such Issuer or any trustee therefor, unless and
until, in either case, the default has been cured or waived or has ceased to
exist, or, any such acceleration has been rescinded or such Senior
Indebtedness has been paid in full, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of, premium, if any, or interest, if any, on
any of the Securities, or in respect of any redemption, retirement, purchase
or other acquisition of any of the Securities other than those made in
capital stock of TEL (or cash in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph
(b) of this Section 13.1) shall occur under the Senior Indebtedness of an
Issuer, pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods occurs (a
"Senior Nonmonetary Default"), then, upon the receipt by such Issuer and the
Trustee of written notice thereof (a "Payment Notice") from or on behalf of
holders of such Senior Indebtedness specifying an election to prohibit such
payment and other action by such Issuer in accordance with the following
provisions of this paragraph (c), such Issuer may not make any payment or
take any other action that would be prohibited by paragraph (b) of this
Section 13.1 during the period (the "Payment Blockage Period") commencing on
the date of receipt of such Payment Notice and ending on the earlier of (i)
the date, if any, on which the holders of such Senior Indebtedness or their
representative notify the Trustee that such Senior Nonmonetary Default is
cured or waived or ceases to exist or the Senior Indebtedness to which such
Senior Nonmonetary Default relates is discharged or (ii) the 179th day after
the date of receipt of such Payment Notice. Notwithstanding the provisions
described in the immediately preceding sentence, such Issuer may resume
payments on the Securities following such Payment Blockage Period.
(d) If (i) (A) without the consent of an Issuer, a receiver,
conservator, liquidator or trustee of such Issuer or of any of its property
is appointed by the order or decree of any court or agency or supervisory
authority having jurisdiction, and such decree or order remains in effect for
more than 60 days or (B) such Issuer is adjudicated bankrupt or insolvent or
(C) any of its property is sequestered by court order and such order remains
in effect for more than 60 days or (D) a petition is filed against such
Issuer under any state or federal bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, liquidation or receivership
law of any jurisdiction whether now or hereafter in effect (including without
limitation the Bankruptcy Code), and is not dismissed within 60 days after
such filing; or (ii) an Issuer (A) commences a voluntary case or other
proceeding seeking liquidation, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or other relief with respect
to itself or its debt or other liabilities under any bankruptcy, insolvency
or other similar law now or hereafter in effect (including without limitation
the Bankruptcy Code) or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or (B) consents to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or (C) fails generally to, or cannot, pay
its debts generally as they become due or (D) takes any corporate action to
authorize or effect any of the foregoing; or (iii) any Subsidiary of an
Issuer takes, suffers or permits to exist any of the events or conditions
referred to in the foregoing clause (i) or (ii), then all Senior Indebtedness
of such Issuer (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made by any Issuer to any Holder of any Securities on account thereof.
Any payment or distribution, whether in cash, securities or other property
(other than securities of such Issuer or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities to
the payment of all Senior Indebtedness of such Issuer then outstanding and to
any securities issued in respect thereof under any such plan of
reorganization or adjustment) which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders
of Senior Indebtedness of such Issuer in accordance with the priorities then
existing among such holders until all Senior Indebtedness of such Issuer
(including any interest thereon accruing after the commencement of any such
proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of such Issuer, the Holders of the Securities, together with the
holders of any obligations of such Issuer ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of such
Issuer the amounts at the time due and owing on account of unpaid principal
of and interest, if any, on the Securities and such other obligations before
any payment or other distribution, whether in cash, property or otherwise,
shall be made on account of any capital stock or any obligations of such
Issuer ranking junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution
of any character, whether in cash, securities or other property (other than
securities of such Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in the subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness of such Issuer then outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof, such payment or distribution of securities shall be received in trust
for the benefit of and shall be paid over or delivered and transferred to the
holders of the Senior Indebtedness of such Issuer then outstanding in
accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness of such Issuer
remaining unpaid, to the extent necessary to pay all such Senior Indebtedness
of such Issuer in full. In the event of the failure of the Trustee or any
Holder to endorse or assign any such payment, distribution or security, each
holder of Senior Indebtedness of such Issuer is hereby irrevocably authorized
to endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness of such
Issuer shall be prejudiced in the right to enforce subordination of the
indebtedness evidenced by the Securities by any act or failure to act on the
part of such an Issuer or any Holder of Securities. Nothing contained herein
shall impair, as between the Issuers and the Holders of Securities of each
series, the obligation of each of the Issuers to pay to such Holders the
principal of and interest, if any, on such Securities or prevent the Trustee
or the Holder from exercising all rights, powers and remedies otherwise
permitted by applicable law or hereunder upon a default or Event of Default
hereunder, all subject to the rights of the holders of the Senior
Indebtedness of such Issuer to remove cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness of such Issuer then
outstanding. Upon the payment in full of all Senior Indebtedness of an
Issuer, the Holders of Securities of each series shall be subrogated to all
rights of any holders of such Senior Indebtedness to receive any further
payment or distributions applicable to such Senior Indebtedness until the
indebtedness evidenced by the Securities of such series shall have been paid
in full and such payments or distributions received by such Holders, by
reason of such subrogation, of cash, securities or other property which
otherwise would be paid or distributed to the holders of such Senior
Indebtedness, shall, as between such Issuer and its creditors other than the
holders of such Senior Indebtedness, on the one hand, and such Holders, on
the other hand, be deemed to be a payment by such Issuer on account of Senior
Indebtedness, and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Issuers
in respect of any security interest the creation of which is not prohibited
by the provisions of this Indenture.
(i) The securing of any obligations of the Issuers, otherwise
ranking on a parity with the Securities or ranking junior to the Securities,
shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness of the Issuer. Upon any
payment or distribution of assets of an Issuer, the Trustee and the Holders
shall be entitled to rely upon an order or decree issued by any court of
competent jurisdiction in which such dissolution or winding up or liquidation
or reorganization or arrangement proceedings are pending or upon a
certificate of the bankruptcy trustee, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution, delivered to
the Trustee or to the Holders, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness of such Issuer and other indebtedness of such Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Thirteen. In the
absence of any such bankruptcy trustee, receiver, assignee or other Person,
the Trustee shall be entitled to rely upon written notice by a Person
representing himself to be a holder of such Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative).
If the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distributions pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and to other facts
pertinent to the rights of such Person under this Article Thirteen, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained
in this Article Thirteen or elsewhere in this Indenture, or in any of the
Securities, shall prevent (a) the Issuers at any time, except during the
pendency of any default with respect to Senior Indebtedness of an Issuer
described in Section 13.1(b) or Section 13.1(c) or of any of the events
described in Section 13.1(d), from making payments of the principal of or
interest, if any, on the Securities, or (b) the application by the Trustee or
any paying agent of any moneys deposited with it hereunder to payments of the
principal of or interest, if any, on the Securities, if, at the time of such
deposit, the Trustee or such paying agent, as the case may be, did not have
the written notice provided for in Section 13.5 of any event prohibiting the
making of such deposit, or if, at the time of such deposit (whether or not in
trust) by the Issuers with the Trustee or paying agent (other than the
Issuers) such payment would not have been prohibited by the provisions of
this Article Thirteen, and the Trustee or any paying agent shall not be
affected by any notice to the contrary received by it on or after such date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness
of the Issuer. Any failure by an Issuer to make any payment on or under any
Senior Indebtedness of such Issuer, other than any Senior Indebtedness of
such Issuer as to which the provisions of this Section 13.4 shall have been
waived by such Issuer in the instrument or instruments by which such Issuer
incurred, assumed, guaranteed or otherwise created such Senior Indebtedness,
shall not be deemed a default under Section 13.1 hereof if (i) such Issuer
shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute
shall have been issued against such Issuer which is in full force and effect
and is not subject to further review, including a judgment that has become
final by reason of the expiration of the time within which a party may seek
further appeal or review, or (B) if a judgment that is subject to further
review or appeal has been issued, such Issuer shall in good faith be
prosecuting an appeal or other proceeding for review, and a stay of execution
shall have been obtained pending such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Thirteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making
of any payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses
(b) and (c) of Section 13.1 has happened unless and until the Trustee shall
have received an Officers' Certificate to the effect or notice in writing to
that effect signed by or on behalf of the holder or holders, or the
representatives, of Senior Indebtedness of an Issuer who shall have been
certified by such Issuer or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or holders or representatives
or from any trustee under any indenture pursuant to which such Senior
Indebtedness of the Issuer shall be outstanding; provided, however, that, if
the Trustee shall not have received the Officers' Certificate or notice
provided for in this Section 13.5 at least three Business Days preceding the
date upon which by the terms hereof any moneys become payable for any purpose
(including, without limitation, the payment of either the principal of or
interest, if any, on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary that may be
received by it within three Business Days preceding such date. Each of the
Issuers shall give prompt written notice to the Trustee and to each paying
agent of any facts that would prohibit any payment of moneys to or by the
Trustee or any paying agent, and the Trustee shall not be charged with
knowledge of the curing of any default or the elimination of any other fact
or condition preventing such payment or distribution unless and until the
Trustee shall have received an Officers' Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as between such Holder and holders of Senior
Indebtedness of the Issuers as provided in this Article Thirteen and appoints
the Trustee its attorney-in-fact for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness of
the Issuer. The Trustee shall be entitled to all the rights set forth in
this Article Thirteen with respect to any Senior Indebtedness of the Issuers
which may at the time be held by it, to the same extent as any other holder
of such Senior Indebtedness and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article
Thirteen shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any
time any paying agent other than the Trustee shall have been appointed by the
Issuers and be then acting hereunder, the term "Trustee" as used in this
Article Thirteen shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within
its meaning as fully for all intents and purposes as if the paying agent were
named in this Article Thirteen in addition to or in place of the Trustee;
provided, however, that Sections 13.5 and 13.7 shall not apply to the Issuers
if the Issuers act as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuers or Holders of Senior Indebtedness. No right of any
present or future holders of any Senior Indebtedness of an Issuer to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of an Issuer or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by such Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have
or be otherwise charged with. The holders of Senior Indebtedness of an
Issuer, may at any time or from time to time and in their absolute direction,
change the manner, place or terms of payment, change or extend the time of
payment of, or renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under such
Senior Indebtedness, including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders of the
Securities or the Trustee and without affecting the obligations of the
Issuers, the Trustee or the Holders of Securities under this Article
Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuer. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness of the Issuers, and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute money or assets to Securityholders or the Issuers. With respect
to the holders of Senior Indebtedness of the Issuers, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of such Senior Indebtedness shall be read
into this Indenture against the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, as of the date first above written.
TRITON ENERGY LIMITED, as
Issuer
Attest:____________________ By:___________________________
Title: Title:
TRITON ENERGY CORPORATION, as Issuer
Attest:____________________ By:___________________________
Title: Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
Attest:____________________ By:___________________________
Title: Title:
Exhibit 4.4
TRITON ENERGY LIMITED,
as Issuer
TRITON ENERGY CORPORATION,
as Issuer
AND
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
Form of Senior Subordinated Indenture
Dated as of _______________ ____, 199_
CROSS REFERENCE SHEET
_______________
Provisions of Trust Indenture Act of 1939 and Indenture dated as of
_________________, _____, 199_, among TRITON ENERGY LIMITED, TRITON ENERGY
CORPORATION and UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . 6.13
311(b) . . . . . . . . . . . . . . . . . 6.13
311(c) . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii), (iv),
(v), (vi) and (vii)
313(a)(5) . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . 5.9
316(a)(1) . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . 5.4
317(a) . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . 11.7
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS . . . . . . . . . . . . . . 1
SECTION 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . 3
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
original issue date . . . . . . . . . . . . . . . . . . . . . . 5
original issue discount . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal amount . . . . . . . . . . . . . . . . . . . . . . . . 6
record date . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 6
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . 7
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . 7
vice president . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . . 8
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 8
SECTION 2.3 Amount Unlimited Issuable in Series . . . . . . . 9
SECTION 2.4 Authentication and Delivery of Securities . . . . 11
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . 14
SECTION 2.6 Certificate of Authentication . . . . . . . . . . 14
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest . . . . . . . . . . . . . . . . . 15
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . . . 17
SECTION 2.10 Cancellation of Securities; Disposition
Thereof . . . . . . . . . . . . . . . . . . . 18
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . 19
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
COVENANTS OF THE ISSUERS . . . . . . . . . . 19
SECTION 3.1 Payment of Principal and Interest . . . . . . . . 19
SECTION 3.2 Offices for Notices and Payments, etc . . . . . . 19
SECTION 3.3 No Interest Extension . . . . . . . . . . . . . . 20
SECTION 3.4 Appointments to Fill Vacancies in Trustee's
Office . . . . . . . . . . . . . . . . . . . 20
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . 20
SECTION 3.6 Condition for Release of TEC . . . . . . . . . . 21
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUERS AND THE TRUSTEE . . . . . . . . . . . 21
SECTION 4.1 Issuers to Furnish Trustee Information as to
Names and Addresses of Securityholders . . . 21
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists . . . . . . . . . . . . 21
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . 23
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . 23
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . 24
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . 24
SECTION 5.2 Payment of Securities on Default; Suit
Therefor . . . . . . . . . . . . . . . . . . 26
SECTION 5.3 Application of Moneys Collected by Trustee . . . 28
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . 29
SECTION 5.5 Proceedings by Trustee . . . . . . . . . . . . . 29
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . 29
SECTION 5.7 Direction of Proceedings; Waiver of Defaults
by Majority of Securityholders . . . . . . . 30
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . 30
SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . 31
ARTICLE SIX
CONCERNING THE TRUSTEE . . . . . . . . . . . 31
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default . . . . . . 31
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . 32
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof . . . . . . . . . . . . . 33
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc. . . . . . . . . . . . . . . 33
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . 34
SECTION 6.6 Compensation and Indemnification of Trustee
and Its Prior Claim . . . . . . . . . . . . . 34
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. . . . . . . . . . . . . . . 34
SECTION 6.8 Qualification of Trustee; Conflicting
Interests . . . . . . . . . . . . . . . . . . 35
SECTION 6.9 Persons Eligible for Appointment as Trustee;
Different Trustees for Different Series . . . 35
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee . . . . . . . . . . . . . . 35
SECTION 6.11 Acceptance of Appointment by Successor
Trustee . . . . . . . . . . . . . . . . . . . 37
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . 38
SECTION 6.13 Preferential Collection of Claims Against the
Issuers. . . . . . . . . . . . . . . . . . . 38
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . 38
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS . . . . . . . . . 39
SECTION 7.1 Evidence of Action Taken by Securityholders . . . 39
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities . . . . . . . . . . . . 39
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . 40
SECTION 7.4 Securities Owned by Issuers Deemed Not
Outstanding . . . . . . . . . . . . . . . . . 40
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . 40
SECTION 7.6 Record Date for Consents and Waivers . . . . . . 41
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES . . . . . . . . . . . 41
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . 41
SECTION 8.2 Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . 43
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . 45
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . 45
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures . . . . . . . . . . . 45
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE,
EXCHANGE OR OTHER DISPOSITION . . . . . . . . . 45
SECTION 9.1 Issuers May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.2 Successor Corporation to be Substituted . . . . . 46
SECTION 9.3 Opinion of Counsel to be Given Trustee . . . . . 46
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS . . . . . . . 47
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . 47
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities . . . . . . . . . . . . 49
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . 49
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years . . . . . . . . 49
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . 50
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . 50
SECTION 11.1 Partners, Incorporators, Stockholders,
Officers and Directors of Issuers Exempt
from Individual Liability . . . . . . . . . . 50
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Holders of Securities . . . . 50
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture . . . . . . . . . . . . . . . . . . 50
SECTION 11.4 Notices and Demands on Issuers, Trustee and
Holders of Securities . . . . . . . . . . . . 50
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein . . . . . . . . . . . . . . . . . . . 51
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays . . . . . . . . . . . . . . . . . . 52
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939 . . . . . . . . . 52
SECTION 11.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . 52
SECTION 11.9 Submission to Jurisdiction . . . . . . . . . . . 52
SECTION 11.10 Counterparts . . . . . . . . . . . . . . . . . . 53
SECTION 11.11 Effect of Headings . . . . . . . . . . . . . . . 53
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . 53
SECTION 12.1 Applicability of Article . . . . . . . . . . . . 53
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . 53
SECTION 12.3 Payment of Securities Called for Redemption . . . 54
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption . . 55
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . 55
ARTICLE THIRTEEN
SUBORDINATION . . . . . . . . . . . . . 57
SECTION 13.1 Securities Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . . 57
SECTION 13.2 Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior
Indebtedness of the Issuer . . . . . . . . . 60
SECTION 13.3 Payment Permitted If No Default . . . . . . . . . 61
SECTION 13.4 Disputes with Holders of Certain Senior
Indebtedness of the Issuer . . . . . . . . . 61
SECTION 13.5 Trustee Not Charged with Knowledge of
Prohibition . . . . . . . . . . . . . . . . . 61
SECTION 13.6 Trustee to Effectuate Subordination . . . . . . . 62
SECTION 13.7 Rights of Trustee as Holder of Senior
Indebtedness of the Issuer . . . . . . . . . 62
SECTION 13.8 Article Applicable to Paying Agents . . . . . . . 62
SECTION 13.9 Subordination Rights Not Impaired by Acts or
Omissions of the Issuers or Holders of
Senior Indebtedness . . . . . . . . . . . . . 62
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuer . . . . . . . . . 63
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[FN]
This Cross Reference Sheet is not part of the Indenture.
