Exhibit 10.51
SENIOR INDENTURE, dated as of April 10, 1997 among TRITON ENERGY LIMITED,
a Cayman Islands company ("TEL"), TRITON ENERGY CORPORATION, a Delaware
corporation ("TEC" and, together with TEL, the "Issuers"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuers each have duly authorized the issuance from time to
time of their joint and several unsecured debentures, notes or other evidences
of indebtedness to be issued in one or more series (the "Securities") up to
such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture; 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
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
herein or in any indenture supplemental hereto or unless the context otherwise
clearly requires). All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, including terms defined therein by reference
to the Securities Act of 1933, as amended (the "Securities Act"), shall have
the meanings assigned to such terms in said Trust Indenture Act of 1939 and in
said Securities Act as in force at the date of this Indenture (except as
herein otherwise expressly provided 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 April 10, 1997.
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 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 that
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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean, in the case of any Security, the Person in whose name such Security is
registered in the security register kept by the Issuers for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person means, without duplication:
(a) (i) the principal of, premium, if any, and interest, if any,
on indebtedness for money borrowed of such Person, indebtedness of such Person
evidenced by bonds, notes, debentures or similar obligations, and any guaranty
by such Person of any indebtedness for money borrowed or indebtedness
evidenced by bonds, notes, debentures or similar obligations of any other
Person, whether any such indebtedness or guaranty is outstanding on the date
of this Indenture or is thereafter created, assumed or incurred, (ii)
obligations of such Person for the reimbursement of any obligor on any letter
of credit, banker's acceptance or similar credit transaction; (iii) the
principal of and premium, if any, and interest, if any, on indebtedness
incurred, assumed or guaranteed by such Person in connection with the
acquisition by it or any of its subsidiaries of any other businesses,
properties or other assets; (iv) lease obligations which such Person
capitalized in accordance with Statement of Financial Accounting Standards No.
13 promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time in
effect; (v) any indebtedness of such Person representing the balance deferred
and unpaid of the purchase price of any property or interest therein (except
any such balance that constitutes an accrued expense or trade payable) and any
guaranty, endorsement or other contingent obligation of such Person in respect
of any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person; and
(vi) obligations of such Person under interest rate, commodity or currency
swaps, caps, collars, options and similar arrangements if and to the extent
that any of the foregoing indebtedness in (i) through (vi) would appear as a
liability on the balance sheet of such Person in accordance with generally
accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness in
clause (a) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuers become obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"Issuer" means either TEC or TEL, and "Issuers" means both TEC and TEL,
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 canceled 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' 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 its agents
upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof.
"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 of TEL 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.
"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.
THE CHASE MANHATTAN BANK, as Trustee
By_____________________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By _____________________________________
as Authenticating Agent
By _____________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited, Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series and with all other unsecured and unsubordinated debt of each 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 orrates at which such original issue discount
shall accrete, if any, and the date or dates from or to which or period or
periods during which such original issue discount shall accrete at such rate
or rates);
(16) if other than Dollars, the foreign currency in which
payment of the principal of, premium, if any, and interest, if any, on the
Securities of such series shall be payable;
(17) if other than The Chase Manhattan Bank is to act as Trustee
for the Securities of such series, the name and Corporate Trust Office of such
Trustee;
(18) if the amounts of payments of principal of, premium, if
any, and interest, if any, on the Securities of such series are to be
determined with reference to an index, the manner in which such amounts shall
be determined;
(19) the terms for conversion or exchange, if any, with respect to
the Securities of such series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to
the Board 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 each of the Issuers 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) 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 each of the Issuers and will have been established in
conformity with the provisions of this Indenture;
(b) when the Securities of such series have been executed
by the Issuers and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture and
will be valid and legally binding obligations of each of the Issuers,
enforceable in accordance with their respective terms, and will be entitled to
the benefits of this Indenture; and
(c) 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, 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 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 canceled, (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 Issuers 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 their 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
canceled 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 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
canceled 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 canceled 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 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 Issuers 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. (a) If the Issuers shall
appoint a paying agent other than the Trustee, they will cause such paying
agent to execute and deliver to the Trustee an instrument in which such paying
agent shall agree with the Trustee, subject to the provisions of this Section
3.5,
(1) that it will hold all sums held by it as such paying
agent for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuers or by any
other obligor on the Securities) in trust for the benefit of the Holders of
the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by
the 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
(3) that it will, at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuers shall act as their own paying agent, they
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
(c) 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.
(d) Anything in this Section 3.5 to the contrary
notwithstanding, any agreement of the Trustee or any paying agent to hold sums
in trust as provided in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the 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 Limitation on Liens. So long as any of the Securities are
Outstanding, the Issuers will not, and will not permit any Restricted
Subsidiary to, pledge, mortgage, hypothecate or grant a security interest in,
or permit any mortgage, pledge, security interest or other lien upon, any
property or assets owned by an Issuer or any Restricted Subsidiary to secure
any Indebtedness, without making effective provision whereby the Securities
then Outstanding shall (so long as such other Indebtedness shall be so
secured) be equally and ratably secured with any and all such other
Indebtedness and any other indebtedness similarly entitled to be equally and
ratably secured; provided, however, that this restriction shall not apply to
nor prevent the creation or existence of:
(a) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets created at the time of the acquisition of such
property or assets by an Issuer or any Restricted Subsidiary or within one
year after such time to secure all or a portion of the purchase price for such
property or assets;
(b) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets existing thereon at the time of the acquisition
thereof by an Issuer or any Restricted Subsidiary (whether or not the
obligations secured thereby are assumed by an Issuer or any Subsidiary);
(c) any mortgage, pledge, security interest, lien or encumbrance
upon any property or assets, whenever acquired, of any corporation or other
entity that becomes a Restricted Subsidiary after the date hereof, provided
that (i) the instrument creating such mortgage, pledge, security interest,
lien or encumbrance shall be in effect prior to the time such corporation or
other entity becomes a Restricted Subsidiary and (ii) such mortgage, pledge,
security interest, lien or encumbrance shall only apply to properties or
assets owned by such corporation or other entity at the time it becomes a
Restricted Subsidiary or thereafter acquired by it from sources other than an
Issuer or another Restricted Subsidiary;
(d) any mortgage, pledge, security interest, lien or encumbrance
arising from or in connection with a conveyance by an Issuer or a Restricted
Subsidiary of any production payment with respect to oil, gas, natural gas,
carbon dioxide, sulphur, helium, coal, metals, minerals, steam, timber or
other natural resources;
(e) any mortgage, pledge, security interest, lien or encumbrance with
respect to, or other transfer of, crude oil, natural gas or other petroleum
hydrocarbons in place for a period of time until, or in an amount such that,
the transferee will realize therefrom a specified amount (however determined)
of money or of such crude oil, natural gas or other petroleum hydrocarbons;
(f) any mortgage, pledge, security interest, lien or encumbrance
required by any contract or statute in order to permit TEL or any Restricted
Subsidiary to perform any contract or subcontract made by it with or at the
request of the United States or any State thereof or any foreign government or
any department, agency, organization or instrumentality thereof, or to secure
partial, progress, advance or other payments to TEL or any Restricted
Subsidiary by such governmental unit pursuant to the provisions of any
contract or statute;
(g) any mortgage, pledge, security interest, lien or encumbrance in
favor of an Issuer or any wholly-owned Subsidiary of TEL;
(h) any mortgage, pledge, security interest, lien or encumbrance
created or assumed by an Issuer or a Restricted Subsidiary in connection with
the issuance of debt securities the interest on which is excludable from gross
income of the holder of such security pursuant to the Internal Revenue Code of
1986, as amended, for the purpose of financing, in whole or in part, the
acquisition or construction of property or assets to be used by an Issuer or a
Subsidiary;
(i) any extension, renewal or refunding of any mortgage, pledge,
security interest, lien or encumbrance permitted by the foregoing
subparagraphs (a) through (h) above on substantially the same property or
assets theretofore subject thereto; or
(j) any mortgage, pledge, security interest, lien or encumbrance
securing any Indebtedness in an amount which, together with all other
Indebtedness secured by a mortgage, pledge, security interest, lien or
encumbrance that is not otherwise permitted by the provisions of this Section
3.6, does not at the time of the incurrence of the Indebtedness so secured
exceed 20% of Consolidated Net Tangible Assets.
In case either of the Issuers or any Restricted Subsidiary shall propose
to pledge, mortgage, hypothecate or grant a security interest in any property
or assets owned by such Issuer or any Restricted Subsidiary to secure any
Indebtedness, other than as permitted by subdivisions (a) to (j), inclusive,
of this Section 3.6, such Issuer will prior thereto give written notice
thereof to the Trustee, and such Issuer will, or TEL will cause such
Restricted Subsidiary to, prior to or simultaneously with such pledge,
mortgage, hypothecation or grant of security interest, by supplemental
indenture executed to the Trustee (or to the extent legally necessary to
another trustee or additional or separate trustee), in form satisfactory to
the Trustee, effectively secure (for so long as such other Indebtedness shall
be so secured) all the Securities equally and ratably with such Indebtedness
and with any other indebtedness similarly entitled to be equally and ratably
secured. Such supplemental indenture shall contain the provisions concerning
the possession, control, release and substitution of mortgaged and pledged
property and securities and other appropriate matters which are required by
the Trust Indenture Act of 1939 (as in effect at the date of execution of such
supplemental indenture) to be included in a secured indenture qualified under
the Trust Indenture Act of 1939, and may also contain such additional and
amendatory provisions permitted by the Trust Indenture Act of 1939 as such
Issuer and the Trustee shall deem advisable or appropriate or as the Trustee
shall deem necessary in connection with such pledge, mortgage, hypothecation
or grant of security interest.
For the purpose of this Section 3.6, "security interest" shall include
the interest of the lessor under a lease with a term of three years or more
that should be, in accordance with generally accepted accounting principles,
recorded as a capital lease, and any such lease of property or assets not
acquired from an Issuer or any Restricted Subsidiary in contemplation of such
lease shall be treated as though the lessee had purchased such property or
assets from the lessor.
SECTION 3.7 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
or principal accounting officer of such Issuer 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), 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:
(a) default in the payment of the principal of or premium,
if any, of the Securities of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or otherwise;
or
(b) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking
fund or other purchase obligation with respect to Securities of such series,
as and when such obligation shall become due and payable; or
(d) failure on the part of 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
(e) 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
(f) either of the Issuers shall institute proceedings for
entry of an order for relief with respect to such Issuer 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 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
(g) 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
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to both of the Issuers (and to both of the
Issuers and 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 specified in Section 5.1(e) or 5.1(f) occurs with
respect to either of the Issuers, 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 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, however, the
right of any Holder of any Security to receive payment of the principal of,
premium, if any, and interest, if any, on such Security, on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates shall not be
impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceedings in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five
or by law to the Trustee or to the Securityholders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of
the Securities of any series then Outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon
advice of counsel that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors, its
executive committee, or a trust committee of directors or Responsible Officers
or both shall determine that the action or proceeding so directed would
involve the Trustee in personal liability. The Holders of a majority in
aggregate principal amount of the Securities of any series then Outstanding
may on behalf of the Holders of all of the Securities of such series waive any
past default or Event of Default hereunder and its consequences except a
default in the payment of interest, if any, on, or the principal of, the
Securities of such series. Upon any such waiver the 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 Issuers 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.
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 each series of
Securities prior to the issuance of such Securities. If the initial Trustee
for any series of Securities is to be a trustee other than The Chase Manhattan
Bank, the 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 Section 5.9, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the 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 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 an 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 canceled 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 The Chase Manhattan Bank as Trustee for a
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the
interests of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the 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
3.7.
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 pursuant to Section 5.1 or the
amount thereof provable in bankruptcy pursuant to Section 5.2, or impair or
affect the right of any Securityholder to institute suit for the payment
thereof or, if the Securities provide therefor, any right of repayment or
purchase at the option of the Securityholder, in each case without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the
Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and
the 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 Board 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, and such Securities may be authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE,
EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 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 either 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 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, premium,
if any, and interest, if any, on the Securities at the time, places and rate
prescribed in this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in
the name of 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; Covenant
Defeasance
(A) If at any time (a) 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 (b) 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 (a) 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 (b) 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 (c) in
the case of any series of Securities with respect to which the exact amount
described in clause (ii) below can be determined at the time of making the
deposit referred to in such clause (ii), (i) all the Securities of such series
not theretofore delivered to the Trustee for cancellation shall have become
due and payable, or by their terms are to become due and payable within one
year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the 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 (ii) above and
the provisions of this Indenture with respect to the Securities of such series
shall no longer be in effect (except, in the case of clause (c) of this
Section 10.1(B), as to (i) rights of registration of transfer and exchange of
Securities of such series, (ii) rights of substitution of mutilated, 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 (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal of, premium, if any, and interest, if any, on all Securities
of such series on each date that such principal or interest, if any, is due
and payable, and (B) any mandatory sinking fund payments on the dates on which
such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(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 (x) the Issuers have received from, or there
has been published by, the Internal Revenue Service a ruling or (y), since the
date hereof, there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred.
(D) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to the foregoing, in the case of any series of Securities with
respect to which the exact amount described in subparagraph (a) below can be
determined at the time of making the deposit referred to in such subparagraph
(a), the Issuers shall be deemed to be, and shall be, released from their
obligations under Section 3.6 hereof on the 91st day after the date of the
deposit referred to in subparagraph (a) below, and the Issuers' obligations
under all Securities of such series and this Indenture with respect to Section
3.6 hereof shall thereafter be deemed to be discharged for the purposes of any
direction, waiver, consent or declaration (and the consequences of any
thereof) in connection therewith but shall continue in full force and effect
for all other purposes hereunder, and the Trustee, on demand of the 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 (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal of, premium, if any, and interest, if any, on all Securities
of such series on each date that such principal or interest, if any, is due
and payable, and (B) any mandatory sinking fund payments on the dates on which
such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series; and
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which 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 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
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 Issuers 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, X.X. Xxx
0000, Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx. 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 Issuers) to The Chase Manhattan Bank, 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, 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, information with
respect to which is in the possession of either 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 its lawful agent in the United States of
America upon which may be served, and which may accept and acknowledge, for
and on behalf of 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 acknowledgment
thereof by said agent, shall be valid, effective and binding in every respect;
provided however, that if said agency shall cease for any reason whatsoever,
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 no, by virtue of anything contained
herein, shall the taking of proceedings in one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction whether concurrently or
not.
SECTION 11.10 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.11 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
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 either of the Issuers is
acting as the Issuers' 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, any moneys in the sinking fund for such series at the time when
any such default or Event of Default known to a Responsible Officer of the
Trustee shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed
to have been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 5.7 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
TRITON ENERGY LIMITED, as Issuer
By: /s/
Title:
Attest:
By: /s/
Title:
TRITON ENERGY CORPORATION, as Issuer
By: /s/
Title:
Attest:
By: /s/
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/
Title:
Attest:
By: /s/
Title:
