Exhibit 10.43
CREDIT AGREEMENT
among
TRITON ENERGY LIMITED
and
TRITON ENERGY CORPORATION,
as Borrowers,
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent,
BARCLAYS BANK PLC,
as Documentary Agent,
MEESPIERSON N.V. and THE CHASE MANHATTAN BANK,
as Co-Agents
and
The Financial Institutions Listed on Schedule 1 Hereto,
as Banks
$125,000,000
dated
August 30, 1996
INDEX
Page
ARTICLE I TERMS DEFINED 1
SECTION 1.1. Definitions 1
SECTION 1.2. Accounting Terms and Determinations 25
SECTION 1.3. Petroleum Terms 25
ARTICLE II THE CREDIT 25
SECTION 2.1. Commitments 25
SECTION 2.2. Method of Borrowing 27
SECTION 2.3. Method of Obtaining Letters of Credit 28
SECTION 2.4. Notes 28
SECTION 2.5. Interest Rates 28
SECTION 2.6. Voluntary Prepayments 30
SECTION 2.7. Voluntary Reduction of Commitments 30
SECTION 2.8. Reduction of Commitments at the Option of
Required Banks 31
SECTION 2.9. Termination of Commitments; Final Maturity 31
SECTION 2.10. Commitment Fee 31
SECTION 2.11. Closing Fee 31
SECTION 2.12. Administrative Agency/Arrangement Fees 31
SECTION 2.13. Recharacterization of TEC as Guarantor.
31
ARTICLE III GENERAL PROVISIONS 32
SECTION 3.1. Delivery and Endorsement of Notes 32
SECTION 3.2. General Provisions as to Payments 32
SECTION 3.3. Capital Adequacy 33
SECTION 3.4. Taxes 34
SECTION 3.5. Foreign Lenders, Participants, and Assignees. 34
SECTION 3.6. Replacement of a Bank. 34
ARTICLE IV SPECIAL PROVISIONS REGARDING EURODOLLAR TRANCHE 35
SECTION 4.1. Funding Losses 35
SECTION 4.2. Basis for Determining Interest Rate Applicable
to Eurodollar Tranches Inadequate 35
SECTION 4.3. Illegality of Eurodollar Tranche 36
SECTION 4.4. Increased Cost of Eurodollar Tranche 36
SECTION 4.5. Adjusted Base Rate Tranche Substituted for
Affected Eurodollar Tranche 37
SECTION 4.6. Discretion of Banks as to Manner of Funding 38
ARTICLE V CONDITIONS PRECEDENT 38
SECTION 5.1. Conditions to Initial Borrowing and
Participation in Letter of Credit Exposure 38
SECTION 5.2. Conditions to each Borrowing and each Letter of
Credit 41
SECTION 5.3. Materiality of Conditions 41
ARTICLE VI REPRESENTATIONS AND WARRANTIES 42
SECTION 6.1. Existence and Power 42
SECTION 6.2. Corporate and Governmental Authorization;
Contravention 42
SECTION 6.3. Binding Effect 42
SECTION 6.4. Financial Information 42
SECTION 6.5. Litigation 44
SECTION 6.6. ERISA 44
SECTION 6.7. Taxes and Filing of Tax Returns 45
SECTION 6.8. Ownership of Properties Generally 45
SECTION 6.9. Colombian Mineral Properties 46
SECTION 6.10. Subsidiaries; Capitalization 46
SECTION 6.11. Licenses, Permits, License Agreements and
Joint Operating Agreement 47
SECTION 6.12. Compliance with Law 47
SECTION 6.13. Full Disclosure 47
SECTION 6.14. Environmental Matters 47
SECTION 6.15. Burdensome Obligations 48
SECTION 6.16. Senior Indebtedness. 48
SECTION 6.17. Fiscal Year 48
SECTION 6.18. No Default 48
SECTION 6.19. Government Regulation 49
SECTION 6.20. Insider 49
SECTION 6.21. Outstanding Debt and Advance Payment
Contract Liabilities 49
ARTICLE VII AFFIRMATIVE COVENANTS 49
SECTION 7.1. Information 49
SECTION 7.2. Maintenance of Existence 52
SECTION 7.3. Right of Inspection 52
SECTION 7.4. Maintenance of Insurance 52
SECTION 7.5. Payment of Taxes and Claims 52
SECTION 7.6. Compliance with Laws and Documents 53
SECTION 7.7. Operation of Properties and Equipment 53
SECTION 7.8. Environmental Law Compliance 53
SECTION 7.9. ERISA Reporting Requirements 53
SECTION 7.10. Additional Documents 55
ARTICLE VIII NEGATIVE COVENANTS 55
SECTION 8.1. Outstanding Debt and Advance Payment
Contract Liabilities. 55
SECTION 8.2. Restricted Payments 57
SECTION 8.3. Negative Pledge 58
SECTION 8.4. Consolidations and Mergers 58
SECTION 8.5. Asset Dispositions 59
SECTION 8.6. Amendments to Material Documents 60
SECTION 8.7. Use of Proceeds 60
SECTION 8.8. Investments 61
SECTION 8.9. Transactions with Affiliates 61
SECTION 8.10. ERISA. 61
SECTION 8.11. Fiscal Year 61
SECTION 8.12. Change in Business 61
SECTION 8.13. Minimum Current Ratio of Borrowers 61
SECTION 8.14. Restrictions on Distributions 61
ARTICLE IX DEFAULTS 62
SECTION 9.1. Events of Default 62
ARTICLE X AGENTS 66
SECTION 10.1. Appointment and Authorization 66
SECTION 10.2. Agents and Affiliates 66
SECTION 10.3. Action by Agents 66
SECTION 10.4. Consultation with Experts 66
SECTION 10.5. LIABILITY OF AGENTS 67
SECTION 10.6. Delegation of Duties 67
SECTION 10.7. Indemnification 67
SECTION 10.8. Credit Decision 67
SECTION 10.9. Successor Agent 68
ARTICLE XI NATURE OF OBLIGATIONS 68
SECTION 11.1. Joint and Several/Cross Guarantees 68
SECTION 11.2. Independent Recourse 68
SECTION 11.3. Obligations not Affected 69
ARTICLE XII MISCELLANEOUS 69
SECTION 12.1. Notices 69
SECTION 12.2. No Waivers 69
SECTION 12.3. Expenses; Documentary Taxes; Indemnification 69
SECTION 12.4. Right and Sharing of Set-Offs 70
SECTION 12.5. Amendments and Waivers 71
SECTION 12.6. Survival 71
SECTION 12.7. Limitation on Interest 71
SECTION 12.8. Invalid Provisions 72
SECTION 12.9. Waiver of Consumer Credit Laws 72
SECTION 12.10. Successors and Assigns 72
▇▇▇▇▇▇▇ ▇▇.▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FEDERAL LAW 73
SECTION 12.12. Consent to Jurisdiction; Waiver of Immunities 73
SECTION 12.13. Counterparts; Effectiveness 74
SECTION 12.14. No Third Party Beneficiaries 74
SECTION 12.15. COMPLETE AGREEMENT 74
SECTION 12.16. WAIVER OF JURY TRIAL 75
EXHIBITS:
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF SUBORDINATION AGREEMENT
EXHIBIT C FORM OF TEC GUARANTY
EXHIBIT D FORM OF REQUEST FOR BORROWING
EXHIBIT E FORM OF REQUEST FOR LETTER OF CREDIT
EXHIBIT F FORM OF ROLLOVER NOTICE
EXHIBIT G FORM OF SOLVENCY CERTIFICATE
EXHIBIT H FORM OF CERTIFICATE OF FINANCIAL OFFICER
EXHIBIT I FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
SCHEDULES:
SCHEDULE 1 FINANCIAL INSTITUTIONS
SCHEDULE 2 EXISTING LETTERS OF CREDIT
SCHEDULE 3 PERMITTED ENCUMBRANCES
SCHEDULE 4 INVESTMENT GUIDELINES
SCHEDULE 5 LITIGATION
SCHEDULE 6 TAXES
SCHEDULE 7 CORPORATE STRUCTURE
SCHEDULE 8 ENVIRONMENTAL DISCLOSURE
SCHEDULE 9 OUTSTANDING DEBT
THIS CREDIT AGREEMENT ("Agreement") is entered into as of the 30th day
of August, 1996, among TRITON ENERGY LIMITED, a Cayman Islands company
("TEL"), and TRITON ENERGY CORPORATION, a Delaware corporation ("TEC"),
(TEC and TEL are collectively referred to herein as "Borrowers" and
individually as "Borrower"), NATIONSBANK OF TEXAS, N.A., as Administrative
Agent ("Administrative Agent"), BARCLAYS BANK PLC, as Documentary Agent
("Documentary Agent"), MEESPIERSON N.V. and THE CHASE MANHATTAN BANK, as
Co-Agents ("Co-Agents") and the financial institutions listed on Schedule
1 hereto as Banks (individually a "Bank" and collectively "Banks").
W I T N E S S E T H:
WHEREAS, Borrowers have requested that Banks provide Borrowers with a
revolving credit facility and Banks are willing to provide such facility on
the terms and subject to the conditions hereinafter set forth; and
WHEREAS, pursuant to Article X of this Agreement, NationsBank of Texas,
N.A. has been appointed Administrative Agent, Barclays Bank PLC has been
appointed Documentary Agent and MeesPierson N.V. and The Chase Manhattan Bank
have been appointed Co-Agents, in each case for Banks hereunder.
NOW, THEREFORE, in consideration of the premises, the representations,
warranties, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers, Administrative Agent, Documentary Agent, Co-Agents
and Banks agree as follows:
ARTICLE I
TERMS DEFINED
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Adjusted Base Rate" means, on any day, the greater of (a) the Base Rate
in effect on such day, or (b) the sum of (i) the Federal Funds Rate in effect
on such day, plus (ii) one-half of one percent (.5%). Each change in the
Adjusted Base Rate shall become effective automatically and without notice to
either Borrower or any Bank upon the effective date of each change in the
Federal Funds Rate or the Base Rate, as the case may be.
"Adjusted Base Rate Tranche" means the portion of the principal of the
Loan bearing interest by reference to the Adjusted Base Rate.
"Adjusted Eurodollar Rate" means, with respect to any Interest Period, a
rate per annum equal to the quotient obtained (rounded upwards, if necessary
to the next higher 1/16 of 1%) by dividing (i) the applicable Eurodollar Rate
by (ii) 1.00 minus the Eurodollar Reserve Percentage.
"Administrative Agent" means NationsBank of Texas, N.A. in its capacity
as Administrative Agent for Banks hereunder or any successor thereto.
"Advance Payment Contract" means any contract whereby TEL or any of its
Subsidiaries either (a) receives or becomes entitled to receive (either
directly or indirectly) any payment (an "Advance Payment") to be applied
toward payment of the purchase price of Hydrocarbons produced or to be
produced from Mineral Interests owned by TEL or any of its Subsidiaries and
which Advance Payment is paid, or to be paid, in advance of actual delivery of
such production to, or for the account of, the purchaser, or (b) grants an
option or right of refusal to the purchaser to take delivery of such
production in lieu of payment, and, in either of the foregoing instances, the
Advance Payment is, or is to be, applied as payment in full for such
production when sold and delivered or is, or is to be, applied as payment for
a portion only of the purchase price thereof or of a percentage or share of
such production.
"Advance Payment Contract Liabilities" means the liabilities of a Person
to deliver and sell Hydrocarbons under an Advance Payment Contract, and, for
purposes of this Agreement, the amount of Advance Payment Contract Liabilities
under an Advance Payment Contract as of any date shall be the product of (a)
the amount of all Advance Payments received by such Person or to be received
by such Person during the course of or following satisfaction of its
obligation to deliver Hydrocarbons under such Advance Payment Contract
(including any portion of such Advance Payments held in escrow or subject to a
Lien securing such obligation (whether or not such Lien is permitted
hereunder)) multiplied by (b) a fraction, the numerator of which is the
remainder of (i) the aggregate volume of Hydrocarbons delivered and required
to be delivered by such Person to or for the account of the purchaser under
such Advance Payment Contract during the entire term of such Advance Payment
Contract minus (ii) the aggregate volume of Hydrocarbons actually delivered by
such Person to or for the account of the purchaser under such Advance Payment
Contract as of such date, and the denominator of which is the aggregate total
volume of Hydrocarbons delivered and required to be delivered by such Person
to or for the account of the Purchaser under such Advance Payment Contract
during the entire term of such Advance Payment Contract. Notwithstanding the
foregoing, for purposes of Sections 8.1(a), (b) and (c) only, "Advance
Payment Contract Liabilities" shall exclude Advance Payment Contract
Liabilities under the Existing Advance Payment Contract.
"Affiliate" means, as to any Person, any Subsidiary of such Person, or
any other Person which, directly or indirectly, controls, is controlled by, or
is under common control with, such Person and, with respect to TEL or any of
its Subsidiaries, means, any director or executive officer of TEL or any of
its Subsidiaries and any Person who holds ten percent (10%) or more of the
voting stock of TEL or any of its Subsidiaries. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or partnership interests,
or by contract or otherwise.
"Agent" means any of Administrative Agent, Documentary Agent or any
Co-Agent, and "Agents" means Administrative Agent, Documentary Agent and
Co-Agents collectively.
"Agreement" shall mean this Agreement as the same may hereafter be
modified, amended or supplemented pursuant to Section 12.5.
"Annualized" means, with respect to Consolidated EBITDAD of any Person
for a period (a) that does not include a complete Fiscal Quarter, the
Consolidated EBITDAD of such Person for the number of complete calendar months
in such period multiplied times a fraction, the numerator of which is twelve
(12) and the denominator of which is the number of complete calendar months in
such period, and (b) of one or more complete Fiscal Quarters but less than
four (4) complete Fiscal Quarters, the Consolidated EBITDAD of such Person for
the number of complete Fiscal Quarters in such period multiplied times a
fraction, the numerator of which is four (4) and the denominator of which is
the number of complete Fiscal Quarters in such period.
"Applicable Margin" means, on any date, with respect to each Type of
Tranche, the amount determined in accordance with the tables below by
reference to (a) the applicable Senior Debt Ratings in effect on such date,
and (b) the ratio of (i) Outstanding Credit on such date, to (ii) the Total
Commitment in effect on such date:
SENIOR DEBT RATINGS:
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S&P Senior Debt Rating is equal to or higher than BBB- Moody's Senior Debt Rating is
equal to or higher than Baa3.
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Ratio of Outstanding Applicable Margin
Credit to Total Commitment for Base Rate Tranches
less than or equal to .35 to 1 0%
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> .35 to 1 and less than or equal to .70 to 1 0%
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> .70 to 1 .125%
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SENIOR DEBT RATINGS:
------------------------------------------------------------------------------------
S&P Senior Debt Rating is equal to or higher than BBB- Moody's Senior Debt Rating is
equal to or higher than Baa3.
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Applicable Margin
Eurodollar Tranches
1.00%
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1.25%
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1.625%
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SENIOR DEBT RATINGS:
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Either S&P Senior Debt Rating is lower than BBB- or Moody's Senior Debt Rating is lower than Baa3,
but S&P Senior Debt Rating is equal to or higher than BB and Moody's Senior Debt Rating
is equal to or higher than Ba2.
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Ratio of Outstanding Applicable Margin
Credit to Total Commitment for Base Rate Tranches
less than or eaqual to .35 to 1 0%
--------------------------------------------------------------------------------------------------
> .35 to 1 and less than or equal to .70 to 1 0%
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> .70 to 1 0.375%
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SENIOR DEBT RATINGS:
--------------------------------------------------------------------------------------------------
Either S&P Senior Debt Rating is lower than BBB- or Moody's Senior Debt Rating is lower than Baa3,
but S&P Senior Debt Rating is equal to or higher than BB and Moody's Senior Debt Rating
is equal to or higher than Ba2.
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Applicable Margin for
Eurodollar Tranches
1.25%
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1.50%
--------------------------------------------------------------------------------------------------
1.875%
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SENIOR DEBT RATINGS:
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Either S&P Senior Debt Rating is lower than BB or Moody's Senior Debt Rating is lower than Ba2.
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Ratio of Outstanding Applicable Margin
Credit to Total Commitment for Base Rate Tranches
less than or equal to .35 to 1 0%
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> .35 to 1 and less than or equal to .70 to 1 .25%
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> .70 to 1 .625%
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SENIOR DEBT RATINGS:
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Either S&P Senior Debt Rating is lower than BB or Moody's Senior Debt Rating is lower than Ba2.
-----------------------------------------------------------------------------------------------
Applicable Margin for
Eurodollar Tranches
1.50%
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1.75%
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2.125%
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The Applicable Margin in effect under this Agreement shall change
automatically and without notice to either Borrower on the effective date of
any change in the applicable Senior Debt Ratings and on the effective date of
any change in the ratio of Outstanding Credit to the Total Commitment.
"Assignee" has the meaning given such term in Section 12.10(c) hereof.
"Assignment and Assumption Agreement" has the meaning given such term in
Section 12.10(c).
"Authorized Officer" means, as to any Person, its Chief Executive
Officer, its President, its Chief Financial Officer, any of its Vice
Presidents, its Treasurer or its corporate Secretary.
"Availability" means, as of any date, the remainder of (a) the Total
Commitment in effect on such date, minus (b) the Outstanding Credit on such
date.
"Bank" means any financial institution reflected on Schedule 1 hereto
as having a Commitment and its successors and permitted Assignees, and "Banks"
shall mean all of the Banks.
"Base Rate" means the floating rate of interest established from time to
time by Administrative Agent as its "prime rate" of interest (which rate is
not the lowest rate of interest charged by Administrative Agent).
"Borrower" means either TEL or TEC and "Borrowers" means both TEL and
TEC.
"Borrowing" means any disbursement to Borrowers under, or to satisfy any
obligations of either Borrower under, any of the Loan Papers. Any Borrowing
which will constitute an Adjusted Base Rate Tranche is referred to herein as
an "Adjusted Base Rate Borrowing," and any Borrowing which will constitute a
Eurodollar Tranche is referred to herein as a "Eurodollar Borrowing."
"Capital Lease" means, for any Person as of any date, any lease of
property, real or personal, which would be capitalized on a balance sheet of
the lessee prepared as of such date in accordance with GAAP.
"Capital Stock" means, as applied to any Person, any and all shares,
interests, participations, rights or other equivalents (however designated) of
such Person's capital stock or other equity interests whether now outstanding
or issued after the date of this Agreement.
"Closing Date" means August 30, 1996.
"Co-Agents" means MeesPierson N.V. and The Chase Manhattan Bank in their
capacities as Co-Agents hereunder or any successor thereto, and "Co-Agent"
means any one of the foregoing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Colombian Assets" means the Mineral Interests held by TCI in the
▇▇▇▇▇▇▇▇ de las Atalayas, Tauramena and Rio Chitamena contract areas in
Colombia, the rights of TCI to the Hydrocarbons produced therefrom, and all
other assets tangible and intangible that are located in or pertain directly
to the operations of TEL or any of its Subsidiaries in the ▇▇▇▇▇▇▇▇ de las
Atalayas, Tauramena and Rio Chitamena contract areas in Colombia.
"Commitment" means, with respect to each Bank, the amount indicated
opposite the name of such Bank on Schedule 1 hereto, as such amount is
reduced from time to time in accordance with the provisions hereof.
"Commitment Fee Percentage" means four hundred twenty-five one
thousandths of one percent (.425%).
"Commitment Percentage" means, with respect to each Bank, the percentage
determined by dividing its Commitment by the Total Commitment.
"Consolidated Cumulative Net Income" means, for any period, the
consolidated after Tax net income of TEL and its Consolidated Subsidiaries for
such period. For purposes of this definition, consolidated after Tax net
income shall be determined in accordance with GAAP but without giving effect
to any write down of the value of TEL's and its Consolidated Subsidiaries
assets or operations (other than Material Assets and operations related
thereto) or any charge related to the discontinuance of such operations.
"Consolidated Current Assets" means, for any Person at any time, the sum
of (a) the consolidated current assets of such Person and its Consolidated
Subsidiaries including accounts or notes receivable (if properly reserved in
accordance with GAAP), but excluding (i) prepaid expenses, and (ii) assets
held for resale (other than marketable securities and Hydrocarbons), plus (b)
in the case of TEL and its Consolidated Subsidiaries, Availability at such
time.
"Consolidated Current Liabilities" means, for any Person at any time, (a)
the current liabilities of such Person and its Consolidated Subsidiaries at
such time, minus (b) in the case of TEL and its Subsidiaries, (i) the current
portion of the 1997 and 9x% Notes, and (ii) liabilities under the Existing
Advance Payment Contract which are not past due.
"Consolidated EBITDAD" means, for any Person for any period, the
Consolidated Net Income of such Person for such period plus (a) the sum of
each of the following determined for such Person and its Consolidated
Subsidiaries on a consolidated basis for such period: (i) any provision for
(or less any benefit from) income or franchise Taxes included in determining
Consolidated Net Income; (ii) Consolidated Net Interest Expense deducted in
determining Consolidated Net Income; (iii) depreciation, depletion and
amortization expense deducted in determining Consolidated Net Income; and (iv)
other noncash charges deducted in determining Consolidated Net Income and not
already deducted in accordance with clauses (ii) and (iii) of this definition,
minus (b) in the case of TEL and its Consolidated Subsidiaries any revenue
recognized in such period and included in the calculation of Consolidated Net
Income for such period attributable to Advance Payments made under the
Existing Advance Payment Contract, minus (c) in the case of TEL and its
Consolidated Subsidiaries, all income Taxes paid or due and payable during
such period to any Governmental Authority in Colombia.
"Consolidated Net Income" means, for any Person as of any period, the net
income (or loss) of such Person and its Consolidated Subsidiaries for such
period determined in accordance with GAAP, but excluding: (a) the income of
any other Person (other than its Consolidated Subsidiaries) in which such
Person or any of its Subsidiaries has an ownership interest, unless received
by such Person or its Consolidated Subsidiaries in a cash distribution; (b)
any after-tax income or gains attributable to asset dispositions; (c) to the
extent not included in clauses (a) and (b) above, any after-tax (i)
extraordinary income or gains, (ii) non-cash income or gains (other than
income or gains resulting from the recognition of deferred revenue under
Advance Payments Contracts with respect to Advance Payments received in prior
periods), or (iii) nonrecurring income or gains; and (d) non-cash or
nonrecurring charges due to changes in accounting principles required by GAAP.
"Consolidated Net Interest Expense" means, for any Person for any period,
the remainder of the following for such Person and its Consolidated
Subsidiaries for such period: (a) interest expense, minus (b) interest income.
"Consolidated Subsidiary" or "Consolidated Subsidiaries" means, for any
Person, any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial
statements.
"Conversion Date" means the earlier of (i) the last day of any month
during which gross production from the Cusiana and Cupiagua fields reaches an
average production of 320,000 barrels of oil per day, or (ii) September 30,
1997.
"CTOC" means Carigali-Triton Operating Co. SDN.BHD, a Malaysia
corporation.
"D&M Reserve Report" means that certain Appraisal Report prepared by
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ as of December 31, 1995, setting forth an engineering
and economic analysis of the Colombian Assets.
"Debt" means, for any Person at any time, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
all obligations of such Person under Regulated Leases, (d) all indebtedness of
such Person on which interest charges are customarily paid or accrued, (e) all
Guarantees by such Person, (f) the unfunded portion of all letters of credit
issued for the account of such Person other than Performance LCs and any
unsatisfied reimbursement obligation with respect to any letters of credit
issued for the account of such Person, (g) any amount owed by such Person
representing the deferred purchase price of property or services other than
accounts payable incurred in the ordinary course of business and in accordance
with customary trade terms, (h) all obligations of such Person under Hedge
Transactions, and (i) all liability of such Person as a general partner of a
partnership for obligations of such partnership of the nature described in (a)
through (h) preceding. For purposes of this Agreement (including, without
limitation, Section 8.1 hereof) the principal amount of Debt of a Person
deemed to be outstanding under (a) Regulated Leases to which a Person is a
party shall be the aggregate net present value (calculated at a discount rate
of ten percent [10%] per annum) of the future Rental Obligations which will
become due and payable by such Person over the remaining term of all Regulated
Leases to which such Person is a party, (b) under Guarantees by such Person,
shall be the principal amount of the Debt or the amount of the Advance Payment
Contract Liabilities guaranteed pursuant thereto, and (c) under Hedge
Transactions, shall be the Net Present Hedge Transaction Exposure of such
Person and (unless specifically stated otherwise herein) its Subsidiaries
under all Hedge Transactions to which such Person and its Subsidiaries are
parties.
"Debt Limit" means, as of any date, (a) to the extent a JDA Sales
Agreement has not been executed as of such date, the lesser of (i)
$650,000,000, or (ii) the sum of (A) $575,000,000, plus (B) the product of 1.5
times the Incremental Equity Increase Amount as of such date, and (b) to the
extent a JDA Sales Agreement has been executed as of such date, $650,000,000.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
"Distribution" means with respect to any stock issued by a Person or any
limited liability company interest, membership interest, partnership interest
or other equity interest of such Person (a) the retirement, redemption,
purchase, or other acquisition for value of any such stock or interest by such
Person or any Subsidiary of such Person, (b) the declaration or payment of any
dividend or other distribution on or with respect to any such stock or
interest of such Person by such Person or any Subsidiary of such Person, and
(c) any other payment by such Person or any Subsidiary of such Person with
respect to such stock or interest.
"Documentary Agent" means Barclays Bank PLC in its capacity as
Documentary Agent for Banks hereunder or any successor thereto.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which national banks in Dallas, Texas, are authorized by Law to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address identified on Schedule 1 hereto as its Domestic Lending Office
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to Borrowers and Administrative Agent.
"Economic Summaries" means those certain Economic Summaries prepared by
TEL as of July 15, 1996, which are based on the D&M Reserve Report with
adjustments thereto to reflect (a) the results of the exploration and
development of the Colombian Assets and the production of Hydrocarbons
therefrom since the date of the D&M Reserve Report, and (b) the accrual and
payment of all severance, remittance, income and other Taxes payable by TEL or
any of its Subsidiaries to any Governmental Authority in Colombia.
"Environmental Complaint" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, proceeding, judgment,
letter or other communication from any Governmental Authority or any other
party against TEL or any of its Subsidiaries involving (a) a Hazardous
Discharge from, onto or about any real property owned, leased or operated at
any time by TEL or any of its Subsidiaries, (b) a Hazardous Discharge caused,
in whole or in part, by TEL or any of its Subsidiaries or by any Person acting
on behalf of or at the instruction of TEL or any of its Subsidiaries, or (c)
any violation of any Environmental Law by TEL or any of its Subsidiaries.
"Environmental Law" means any U.S. or foreign, federal, provincial, state
or local law, common law, ordinance, regulation, policy, order, decree,
permit, judgment or injunction issued, promulgated, approved or entered into,
relating to the environment, health and safety, or Hazardous Substances
(including, without limitation, the use, handling, transportation, production,
disposal, discharge or storage thereof) or to industrial hygiene or the
environmental conditions on, under, or about any real property owned, leased
or operated at any time by TEL or any of its Subsidiaries or any real property
owned, leased or operated by any other party including, without limitation,
soil, groundwater, and indoor and ambient air conditions.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means any corporation or trade or business under common
control with either Borrower as determined under section 414(b), (c), (m) or
(o) of the Code.
"ERISA Event" means, with respect to either Borrower and any ERISA
Affiliate, (a) a "reportable event" as defined in section 4043 of ERISA (other
than a reportable event not subject to the provision for thirty (30) days
notice to the PBGC under regulations issued under section 4043 of ERISA), (b)
the withdrawal of TEL or an ERISA Affiliate from a Plan during a plan year in
which it was a "substantial employer" as defined in section 4001(a)(2) of
ERISA, (c) the filing of a notice of intent to terminate a Plan under section
4041(c) of ERISA, (d) the institution of proceedings to terminate a Plan by
the PBGC, (e) the failure to make required contributions which could result in
the imposition of a lien under section 412 of the Code or section 302 of
ERISA, or (f) any other event or condition which might reasonably be expected
to constitute grounds under section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan or the imposition of any
liability under Title IV of ERISA other than PBGC premiums due but not
delinquent under section 4007 of ERISA.
"Eurodollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in the applicable eurodollar market.
"Eurodollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address identified on Schedule 1 hereto as its
Eurodollar Lending Office or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Eurodollar Lending Office by notice
to Borrowers and Administrative Agent.
"Eurodollar Rate" applicable to any Interest Period means the rate per
annum determined by Administrative Agent (rounded upward, if necessary, to the
next higher 1/16th of 1%) at which deposits in dollars are offered to
Administrative Agent by first class banks in the eurodollar interbank market
selected by Administrative Agent at approximately 1:00 p.m. (Dallas, Texas
time) two (2) Eurodollar Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Eurodollar Tranche to which such Interest Period is to apply and for a period
of time comparable to such Interest Period. Administrative Agent shall
determine the Eurodollar Rate and shall notify Borrowers and Banks as soon as
practicable.
"Eurodollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in Dallas, Texas in respect of "Eurocurrency liabilities" (or
in respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Tranches is determined or
any category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Tranche" means, with respect to any Interest Period, any
portion of the principal amount outstanding under the Loan which bears
interest at a rate computed by reference to the Adjusted Eurodollar Rate for
such Interest Period.
"Events of Default" has the meaning set forth in Section 9.1.
"Exhibit" refers to an exhibit attached to this Agreement and
incorporated herein by reference, unless specifically provided otherwise.
"Existing Advance Payment Contract" means the Crude Oil Purchase and Sale
Agreement dated as of May 25, 1995, by and between TCI and Oil Co. Ltd. as in
effect on the date hereof, and without giving effect to any future Advance
Payments which may be made pursuant thereto.
"Existing ECA Debt" means up to $45,000,000 of Debt of TCI outstanding
under that certain Credit Agreement dated as of November 21, 1995, by and
among TCI, TEC, NationsBank, N.A. (Carolinas) and the Export-Import Bank of
the United States as amended by Amendment No. 1 to Credit Agreement and
Amendment No. 2 to Credit Agreement.
"Existing Letters of Credit" means the letters of credit issued by
NationsBank of Texas, N.A. prior to the Closing Date for the account of TEL
and/or its Subsidiaries which are described on Schedule 2 hereto.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (a) if the day for which such rate is
to be determined is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (b) if such rate is not so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for any day shall be the average rate
charged to Administrative Agent on such day on such transactions as determined
by Administrative Agent.
"Financial Officer" of any Person means its Chief Financial Officer, Vice
President of Accounting or Treasurer; provided, that if no Person serves in
any such capacity, "Financial Officer" shall mean the highest ranking
executive officer of such Person with responsibility for accounting, financial
reporting, cash management and similar functions.
"Fiscal Quarters" means the three month periods ending on March 31, June
30, September 30 and December 31.
"Fiscal Year" means the period from and including January 1 of each year
to and including December 31 of such year.
"GAAP" means those generally accepted accounting principles and practices
which are recognized as such by the American Institute of Certified Public
Accountants acting through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards or committees
thereof and which are consistently applied for all periods after the date
hereof so as to properly reflect the financial condition, and the results of
operations and changes in financial position, of TEL and its Consolidated
Subsidiaries (or selected Subsidiaries of TEL to the extent financial
reporting with respect to such selected Subsidiaries is required hereunder),
except that any accounting principle or practice required or permitted to be
changed by the said Accounting Principles Board or Financial Accounting
Standards Board (or other appropriate board or committee of the said Boards)
in order to continue as a generally accepted accounting principle or practice
may be so changed.
"Governmental Authority" means any court or governmental department,
commission, board, bureau, agency, or instrumentality of any nation
(including, without limitation, the United States, the Cayman Islands,
Colombia, Malaysia and Thailand), commonwealth, state, province, territory,
possession, county, parish, or municipality, whether now or hereafter
constituted or existing.
"Grantor" means (a) Empresa Colombiana De Petroleos in the case of (i)
Contract for Exploration and Exploitation for ▇▇▇▇▇▇▇▇ de Atalayas I with an
effective date of July 1, 1982, between TCI, and Empresa Colombiana De
Petroleos; (ii) Contract for Exploration and Exploitation for Tauramena with
an effective date of July 4, 1988, between TCI, and Empresa Colombiana De
Petroleos; and (iii) Rio Chitamena Association Contract between Empresa
Colombiana De Petroleos and Total Exploration En Produktie Maatschappij B.V.,
dated December 3, 1990, and (b) Malaysia-Thailand Joint Authority in the case
of Contract between Malaysia-Thailand Joint Authority and Petronas-Carigali
SDN.BHD. and TOCT dated as of April 21, 1994 relating to Exploration and
Production of Petroleum for Malaysia-Thailand Joint Development Area Block
A-18.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing Debt or Advance Payment
Contract Liabilities of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or Advance Payment Contract Liabilities
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions, by "comfort letter" or other
similar undertaking of support or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or Advance
Payment Contract Liabilities of the payment and performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business.
"Hazardous Discharge" means any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping of any Hazardous Substance from or onto any real property
owned, leased or operated at any time by TEL or any of its Subsidiaries or any
real property owned, leased or operated by any other party.
"Hazardous Substance" means any pollutant, toxic substance, hazardous
waste, compound, element or chemical that is defined as hazardous, toxic,
noxious, dangerous or infectious pursuant to any Environmental Law or which is
otherwise regulated by any Environmental Law.
"Hedge Transaction" means any commodity, interest rate, currency or other
swap, option, collar, futures or other contract pursuant to which a Person
▇▇▇▇▇▇ risk related to commodity prices, interest rates, currency exchange
rates, securities prices or financial market conditions.
"Hydrocarbons" means oil, gas, casinghead gas, drip gasolines, natural
gasoline, condensate, distillate, and all other liquid and gaseous
hydrocarbons produced or to be produced in conjunction therewith, and all
products, by-products and all other substances derived therefrom or the
processing thereof, and all other minerals and substances, including, but not
limited to, sulphur, lignite, coal, uranium, thorium, iron, geothermal steam,
water, carbon dioxide, helium, and any and all other minerals, ores, or
substances of value, and the products and proceeds therefrom, including,
without limitation, all gas resulting from the in-situ combustion of coal or
lignite.
"Immaterial Operating Leases" means Operating Leases entered into in the
ordinary course of business related to the lease or license of (a) office
space, office furniture and equipment, computer equipment and software and
similar assets, and (b) Hydrocarbon drilling, production and transportation
equipment; provided that (i) the equipment leased under leases considered
"Immaterial Operating Leases" pursuant to this clause (b) shall only be
incidental to and shall not comprise substantial activity pursuant to a
development plan for a License Agreement, (ii) no lease considered an
"Immaterial Operating Lease" pursuant to this clause (b) shall have a term
greater than one (1) year, and (iii) the aggregate amount of all Rentals
payable under Operating Leases considered "Immaterial Operating Leases" under
this clause (b) shall not exceed $10,000,000 in any Fiscal Year. Except as
provided in clause (b) preceding, "Immaterial Operating Leases" shall not
include leases of drilling, production and transportation machinery, equipment
and facilities.
"Incremental Equity Increase Amount" means, as of any date, the sum of
(a) the net proceeds received by TEL from the issuance by TEL of its equity
securities during the period from the Closing Date to such date, plus (b) the
Consolidated Cumulative Net Income of TEL for the period commencing July 1,
1996 through the last day of the Fiscal Quarter most recently ended as of such
date for which TEL has delivered to Banks the financial statements required by
Section 7.1(c) (in the case of the first three Fiscal Quarters of each
Fiscal Year) or Section 7.1(a) (in the case of the fourth Fiscal Quarter of
each Fiscal Year).
"Interest Period" means, with respect to each Borrowing comprised of
Eurodollar Tranches, the period commencing on the date of such Borrowing and
ending one (1), two (2), three (3) or six (6) months thereafter, as Borrowers
may elect in the applicable Request for Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day;
(b) any Interest Period which begins on the last Eurodollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Eurodollar Business Day of
a calendar month;
(c) if any Interest Period includes a date on which any payment of
principal of the Loan subject to such Eurodollar Tranche is required to be
made hereunder, but does not end on such date, then (i) the principal amount
of each Eurodollar Tranche required to be repaid on such date shall have an
Interest Period ending on such date, and (ii) the remainder of each such
Eurodollar Tranche shall have an Interest Period determined as set forth
above; and
(d) no Interest Period shall extend past the Termination Date.
"Investment" means, with respect to any Person, any loan, advance,
extension of credit, capital contribution to, investment in or purchase of the
stock or other securities of, or interests in, any other Person; provided,
that "Investment" shall not include current customer, partner or supplier
trade accounts which are payable or performable in accordance with customary
trade terms.
"Issuer" has the meaning given such term in Section 2.1(b).
"JDA Assets" means the legal and beneficial interests of TEL,
TIOC-Cayman, TOCT and TOCT (JDA) in the License Agreement for
Malaysia-Thailand Joint Development Area Block A-18, the rights of TEL,
TIOC-Cayman, TOCT and TOCT (JDA) to the Hydrocarbons produced therefrom and
the proceeds of the sale of such Hydrocarbons, and all other assets, tangible
and intangible, of TEL and its Subsidiaries that are located in or pertain
directly to the operations, revenues and profits of TEL or any of its
Subsidiaries in or derived from the Malaysia-Thailand Joint Development Area
Block A-18.
"JDA Sales Agreement" means an agreement entered into by TOCT and TOCT
(JDA) as sellers and one or more purchasers and executed or approved in
writing by the Malaysia-Thailand Joint Authority which provides for the
following: (a) the sale by TOCT and TOCT (JDA) to such purchasers of natural
gas produced from Malaysia-Thailand Joint Development Area Block A-18 for a
term not less than ten (10) years at an average volume not less than
300,000,000 cubic feet of gas per day, and (b) a mechanism for determining the
price of natural gas sold thereunder. For purposes of this Agreement, a JDA
Sales Agreement will be deemed to be "executed" when a copy of such document
has been provided to Banks which has been executed by all parties thereto
contemplated by this definition, together with a certificate executed by an
Authorized Officer confirming that such JDA Sales Agreement is in full force
and effect and constitutes the valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with its terms in all
material respects.
"Joint Disbursement Account" means a deposit account maintained by
Borrowers with Administrative Agent into which proceeds of Borrowings shall be
deposited. Unless and until Borrowers and Administrative Agent jointly
stipulate in writing that another account is the Joint Disbursement Account,
the Joint Disbursement Account shall be Account No. 375-007-363-0 established
by Borrowers with Administrative Agent.
"Joint Operating Agreement" means the Joint Operating Agreement for the
▇▇▇▇▇▇▇▇ De Las Atalayas-1, Tauramena and Rio Chitamena Association Contract
Areas dated as of March 29, 1994, by and among BP Exploration Company
(Colombia) Limited, Total Exploratie en Produktie MIJ B.V. and TCI.
"Laws" means all applicable statutes, laws, ordinances, regulations,
orders, writs, injunctions, or decrees of any state, commonwealth, nation,
territory, possession, county, township, parish, municipality or Governmental
Authority.
"Lending Office" means as to any Bank its Domestic Lending Office or its
Eurodollar Lending Office, as the context may require.
"Letter of Credit Exposure" of any Bank means such Bank's aggregate
participation in the unfunded portion of Letters of Credit outstanding at any
time and any unsatisfied reimbursement obligation with respect to any Letters
of Credit at such time.
"Letter of Credit Fee" means, with respect to any Letter of Credit issued
hereunder, a fee in an amount equal to the greater of (a) $500, or (b) a
percentage of the stated amount of such Letter of Credit (calculated on a per
annum basis based on the stated term of such Letter of Credit) determined in
accordance with the tables below by reference to (i) the Senior Debt Ratings
in effect on the date of issuance of such Letter of Credit, and (ii) the ratio
of (A) the Outstanding Credit on the date of issuance of such Letter of
Credit, to (B) the Total Commitment in effect on such date:
SENIOR DEBT RATINGS:
--------------------------------------------
S&P Senior Debt Rating is equal to or
higher than BBB- and ▇▇▇▇▇'▇ Senior Debt
Rating is equal to or higher than Baa3.
Ratio of Outstanding Per Annum Letter of
Credit to Total Commitment Credit Fee
less than or equal to .35 to 1 1.00%
-------------------------------------------
> .35 to 1 less than or equal to .70 to 1 1.25%
-------------------------------------------
> .70 to 1 1.625%
------------------------------------------- --------------------
SENIOR DEBT RATINGS:
--------------------------------------------------------------------------------------------------
Either S&P Senior Debt Rating is lower than BBB- or ▇▇▇▇▇'▇ Senior Debt Rating is lower than Baa3,
but S&P Senior Debt Rating is equal to or higher than BB and ▇▇▇▇▇'▇ Senior Debt Rating
is equal to or higher than Ba2.
--------------------------------------------------------------------------------------------------
Ratio of Outstanding Per Annum Letter of
Credit to Total Commitment Credit Fee
-------------------------------------------------------------------------------------------------- --------------------
less than or equal to .35 to 1 1.25%
--------------------------------------------------------------------------------------------------
> .35 to 1 less than or equal to .70 to 1 1.50%
--------------------------------------------------------------------------------------------------
> .70 to 1 1.875%
-------------------------------------------------------------------------------------------------- --------------------
SENIOR DEBT RATINGS:
-----------------------------------------------------------------------------------------------
Either S&P Senior Debt Rating is lower than BB or ▇▇▇▇▇'▇ Senior Debt Rating is lower than Ba2.
-----------------------------------------------------------------------------------------------
Ratio of Outstanding Per Annum Letter of
Credit to Total Commitment Credit Fee
less than or equal to .35 to 1 1.50%
-----------------------------------------------------------------------------------------------
> .35 to 1 less than or equal to .70 to 1 1.75%
-----------------------------------------------------------------------------------------------
> .70 to 1 2.125%
----------------------------------------------------------------------------------------------- --------------------
"Letter of Credit Fronting Fee" means a fee equal to one tenth of one
percent (.10%) of the stated amount of each Letter of Credit.
"Letters of Credit" means letters of credit issued for the account of
Borrowers or their Subsidiaries pursuant to Section 2.1(b).
"License Agreements" means each of the following agreements as in effect
on the date hereof and as the same may hereafter be modified, amended,
supplemented or restated, (a) Contract for Exploration and Exploitation for
▇▇▇▇▇▇▇▇ de Atalayas I with an effective date of July 1, 1982, between TCI,
and Empresa Colombiana De Petroleos; (b) Contract for Exploration and
Exploitation for Tauramena with an effective date of July 4, 1988, between
TCI, and Empresa Colombiana De Petroleos; (c) Rio Chitamena Association
Contract between Empresa Colombiana De Petroleos and Total Exploration En
Produktie Maatschappij B.V., dated December 3, 1990; and (d) Contract between
Malaysia-Thailand Joint Authority and Petronas-Carigali SDN.BHD. and TOCT
dated as of April 21, 1994 relating to Exploration and Production of
Petroleum for ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇-▇▇.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, TEL and its Subsidiaries shall be deemed
to own subject to a Lien any asset which is acquired or held subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Loan" means the revolving credit loan to be made by Banks to Borrowers
under this Agreement in an amount outstanding at any time not to exceed the
remainder of (a) the Total Commitment in effect at such time, minus (b) the
aggregate Letter of Credit Exposure at such time.
"Loan Papers" means this Agreement, the Notes, and all other
certificates, documents or instruments delivered in connection with this
Agreement, as the foregoing may be amended, supplemented, renewed, extended or
restated from time to time.
"Margin Regulations" means Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"Margin Stock" means "margin stock" as defined in Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
assets, liabilities, financial condition, results of operations or prospects
of either Borrower or any Material Subsidiary, considered individually, or TEL
and its Subsidiaries, taken as a whole, (b) the right or ability of either
Borrower or any of their Subsidiaries to fully, completely and timely perform
their respective obligations under the Loan Papers, or (c) the validity or
enforceability of any Loan Paper against either Borrower or any of their
Subsidiaries.
"Material Assets" means the Colombian Assets and the JDA Assets.
"Material Capitalization Documents" means the License Agreements and the
Existing Advance Payment Contract.
"Material Subsidiaries" means TCI, TIOC, TOCT, TOCT (JDA), Triton
Pipeline Colombia, Inc., TIOC-Cayman, CTOC, and Triton International
Petroleum, Inc. " Material Subsidiaries" shall not include TEC.
Notwithstanding the foregoing, CTOC shall not be considered a "Material
Subsidiary" for purposes of Section 7.5(b) or 7.7.
"Maximum Lawful Rate" means, for each Bank, the maximum rate (or, if the
context so permits or requires, an amount calculated at such rate) of interest
which, at the time in question would not cause the interest charged on the
portion of the Loan owed to such Bank at such time to exceed the maximum
amount which such Bank would be allowed to contract for, charge, take,
reserve, or receive under applicable Laws after taking into account, to the
extent required by applicable Laws, any and all relevant payments or charges
under the Loan Papers. To the extent the Laws of the State of Texas are
applicable for purposes of determining the "Maximum Lawful Rate," such term
shall mean the "indicated rate ceiling" from time to time in effect under
Article 1.04, Title 79, Revised Civil Statutes of Texas, 1925, as amended, or,
if permitted by applicable law and effective upon the giving of the notices
required by such Article 1.04 (or effective upon any other date otherwise
specified by applicable law), the "quarterly ceiling" or "annualized ceiling"
from time to time in effect under such Article 1.04, whichever Administrative
Agent (with the approval of Required Banks) shall elect to substitute for the
"indicated rate ceiling," and vice versa, each such substitution to have
the effect provided in such Article 1.04, and Administrative Agent (with the
approval of Required Banks) shall be entitled to make such election from time
to time and one or more times and, without notice to Borrowers, to leave any
such substitute rate in effect for subsequent periods in accordance with
subsection (h)(1) of such Article 1.04.
"Mineral Interests" means rights, interests and properties pursuant to
which a Person has the right to explore for, develop, produce and sell
Hydrocarbons and other minerals and to receive and retain the revenues and
other economic benefits resulting therefrom and regardless of whether such
rights, interests and property arise by contract, order, operation of Law or
ownership of estates, titles, and interests in and to oil, gas, sulphur, or
other mineral leases and any mineral interests, royalty and overriding royalty
interest, production payment, net profits interests, mineral fee interests,
and other rights, including, without limitation, any reversionary or carried
interests relating to the foregoing, together with rights, titles, and
interests created by or arising under the terms of any unitization,
communization, and pooling agreements or arrangements.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, or any successor thereto.
"Net Hedge Transaction Exposure" means, as of any date, the net liability
of TEL and its Subsidiaries under Hedge Transactions to which TEL and its
Subsidiaries are parties as of such date. Net Hedge Transaction Exposure
shall be determined by TEL as of the last day of each calendar month and such
other dates as Administrative Agent or Required Banks shall reasonably request
and shall be the amount determined by TEL in good faith to be the net
termination liability of TEL and its Subsidiaries under all Hedge Transactions
to which TEL or any Subsidiary of TEL is a party as of any date of
determination assuming such Hedge Transactions were terminated as of such date
(whether or not such Hedge Transactions are terminable in accordance with
their terms but excluding any penalty for early termination to the extent not
actually incurred). In the case of any commodity Hedge Transaction, Net Hedge
Transaction Exposure shall be determined without adjustment due to any
physical interest TEL or any of its Subsidiaries may hold in the underlying
commodity. TEL shall include its calculation of Net Hedge Transaction
Exposure as of the last day of each calendar month in the Financial Officer's
certificates delivered to each Bank for such month (and the Fiscal Quarter
then ending if applicable) pursuant to Section 7.1(d) and (e). To the
extent Required Banks reasonably determine that TEL's calculation of Net Hedge
Transaction Exposure is inaccurate or incorrect in any respect, Required Banks
may require that such exposure be calculated by a nationally recognized firm
of independent public accountants, investment bankers or comparable experts
selected by Required Banks (at the expense of Borrowers) in which event Net
Hedge Transaction Exposure shall be the amount thereof calculated by such
experts.
"9 3/4% Notes" means TEC's Senior Subordinated Discount Notes due
December 15, 2000 in an aggregate stated principal amount of $170,000,000.
"9 3/4% Notes Indenture" means the Amended and Restated Senior
Subordinated Indenture dated as of December 15, 1993 and amended and
restated on March 25, 1996, by and among Borrowers and United States Trust
Company of New York, Trustee which sets forth certain terms and conditions
applicable to the 9 3/4% Notes.
"1997 Notes" means TEC's Senior Subordinated Discount Notes due 1997 in
an aggregate stated principal amount of $240,000,000.
"1997 Notes Indenture" means the Amended and Restated Indenture dated as
of November 13, 1992 as amended and restated as of July 1, 1993 and March 25,
1996 by and among Borrowers and Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee which sets forth certain terms and conditions
applicable to the 1997 Notes.
"Note" means a promissory note executed jointly and severally by each
Borrower payable to the order of a Bank, in substantially the form of Exhibit
A hereto, evidencing the joint and several obligations of each Borrower to
repay to such Bank its Commitment Percentage of the Loan, together with all
modifications, extensions, renewals and rearrangements thereof; and "Notes"
means all Notes.
"Obligations" means all present and future indebtedness, obligations and
liabilities, and all renewals and extensions thereof, or any part thereof, of
Borrowers or any of their Subsidiaries to any Bank arising pursuant to the
Loan Papers, and all interest accrued thereon and costs, expenses, and
attorneys' fees incurred in the enforcement or collection thereof, regardless
of whether such indebtedness, obligations and liabilities are direct,
indirect, fixed, contingent, liquidated, unliquidated, joint, several or joint
and several.
"OCENSA" means Oleoducto Central S.A., a Colombian corporation,
approximately 9.6% percent of the issued and outstanding Capital Stock of
which is owned by Triton Pipeline Colombia, Inc., a wholly owned Subsidiary of
TEL.
"Operating Leases" means all leases, subleases, licenses and similar
arrangements (other than Capital Leases) pursuant to which a Person leases,
subleases or otherwise is granted the right to occupy, take possession of, or
use property whether real, personal or mixed.
"Outstanding Credit" means, on any date, the sum of (a) the aggregate
outstanding Letter of Credit Exposure on such date including the aggregate
Letter of Credit Exposure related to Letters of Credit to be issued on such
date, plus (b) the outstanding principal balance of the Loan on such date,
including the principal amount of all Borrowings to be made on such date. For
purposes of Section 2.1(c) only, "Outstanding Credit" shall not include
Letter of Credit Exposure which is cash collateralized in the manner
contemplated by Section 9.1.
"Participant" has the meaning given such term in Section 12.10(b)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance LCs" means letters of credit securing performance
obligations of TEL and/or any of its Subsidiaries under contracts entered into
by TEL or its Subsidiaries in the ordinary course of business relating to the
exploration for Hydrocarbons and the development, transportation and
production of Hydrocarbons and Mineral Interests. "Performance LCs" expressly
exclude letters of credit securing Debt or trade accounts payable.
"Performance LCs" further expressly excludes any letter of credit which (or
the reimbursement obligation for which) would be reflected as a liability on a
balance sheet of the account party prepared in accordance with GAAP.
"Permitted ECA Debt" means (a) the Existing ECA Debt, and (b) up to
$33,000,000 in Debt of TEC and its Subsidiaries guaranteed by the United
Kingdom Export Credit Guarantee Department.
"Permitted Encumbrances" means with respect to any asset:
(a) Liens (if any) securing the Notes in favor of Banks;
(b) Minor defects in title which do not secure the payment of
money and otherwise have no material adverse effect on the value or operation
of the subject property, and for the purposes of this Agreement, a minor
defect in title shall include easements, rights-of-way, servitudes, permits,
surface leases and other similar rights in respect of surface operations, and
easements for pipelines, streets, alleys, highways, telephone lines, power
lines, railways and other easements and rights-of-way, on, over or in respect
of any of the properties of TEL and its Subsidiaries that are customarily
granted in the oil and gas industry;
(c) Inchoate statutory or operators' liens securing obligations
for labor, services, materials and supplies furnished to Mineral Interests in
the ordinary course of business and which are not delinquent (except to the
extent permitted by Section 7.5);
(d) Mechanic's, materialmen's, warehouseman's, journeyman's and
carrier's liens and other similar liens arising by operation of Law in the
ordinary course of business which are not delinquent (except to the extent
permitted by Section 7.5);
(e) Liens for Taxes not yet due or not yet delinquent, or, if
delinquent, that are being contested in good faith in the normal course of
business by appropriate action, as permitted by Section 7.5;
(f) Burdens arising in the ordinary course of business which do
not secure Debt or Advance Payment Contract Liabilities encumbering Mineral
Interests held by TEL and its Subsidiaries in favor of third parties which, in
the case of Colombian Assets, such burdens are deducted in the calculation of
discounted present value in the D&M Reserve Report and the Economic Summaries,
including, without limitation, any royalty, overriding royalty, net profits
interest, production payment, carried interest or reversionary working
interest;
(g) Liens encumbering assets securing Debt incurred to finance
the purchase of such assets, including, without limitation, the interests of a
lessor under a Capital Lease, provided that (i) the principal amount of the
Debt secured by a purchased asset shall not exceed one hundred percent (100%)
of the purchase price of such asset, (ii) such Liens shall not extend to or
encumber any other asset of TEL or any of its Subsidiaries, (iii) such Liens
shall attach to such purchased asset substantially simultaneously with the
purchase of such asset, and (iv) the aggregate amount of all Debt secured by
such Liens shall not exceed $25,000,000 at any time;
(h) Liens created or assumed by TEL or any of its Subsidiaries
in connection with the incurrence of Debt the interest on which is excluded
from gross income of the holder of such Debt pursuant to the Code, as amended,
for the purpose of financing, in whole or in part, the acquisition or
construction of property or assets to be used by TEL or any of its
Subsidiaries; provided that such Liens shall not attach or encumber any other
property or asset of TEL or any of its Subsidiaries;
(i) Liens described on Schedule 3;
(j) Liens created or assumed by any Subsidiary of TEL (other
than TEC) in favor of TEL or any other Subsidiary of TEL;
(k) Liens encumbering cash or marketable securities with an
aggregate value (considering such cash and marketable securities in the
aggregate) not exceeding $10,000,000 at any time which Liens secure
obligations under Hedge Transactions; and
(l) Liens consisting of rights of holders of Debt of TEL and its
Subsidiaries (or rights of an indenture trustee or other representative of the
holders of such Debt) to cash and marketable securities deposited by TEL or
its Subsidiaries to defease the obligations of TEL and its Subsidiaries with
respect to such Debt pursuant to the terms of the instruments governing such
Debt (to the extent such defeasance is permitted hereunder).
"Permitted Investments" means (a) readily marketable direct obligations
of the United States of America, (b) fully insured time deposits and
certificates of deposit with maturities of one year or less of any commercial
bank operating in the United States having capital and surplus in excess of
$500,000,000.00, (c) commercial paper of a domestic issuer if at the time of
purchase such paper is rated in one of the two highest ratings categories of S
& P or Moody's, (d) to the extent not included in (a), (b) or (c) preceding,
Investments which conform to or exceed (in terms of credit quality) TEL's
investment guidelines attached hereto as Schedule 4, and (e) provided that
no Default or Event of Default has occurred which is continuing at the time
such Investment is made, (i) Investments in direct or indirect wholly owned
Subsidiaries of TEL or Persons which become direct or indirect wholly owned
Subsidiaries of TEL simultaneously with such Investment, (ii) Investments in
OCENSA in an aggregate amount not to exceed $35,000,000 from the Closing Date
to the date of termination of the Commitments and payment in full of all
outstanding Obligations, and (iii) Investments in CTOC.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
Government Authority.
"Plan" means an employee benefit plan within the meaning of section 3(3)
of ERISA, and any other similar plan, policy or arrangement, including an
employment contract, bonus or deferred compensation arrangement and stock
option plans, whether formal or informal and whether legally binding or not,
under which TEL or an ERISA Affiliate has any current or future obligation or
liability or under which any present or former employee of TEL or an ERISA
Affiliate, or such present or former employee's dependents or beneficiaries,
has any current or future right to benefits resulting from the present or
former employee's employment relationship with TEL or an ERISA Affiliate.
"Production Milestone Date" means the earlier of (i) the last day of the
first calendar month following the Closing Date during which gross production
of Hydrocarbons from the Cusiana and Cupiagua fields reaches an average of
450,000 barrels of oil per day, or (ii) March 31, 1998.
"Projections" means the projections of TEL's and its Consolidated
Subsidiaries future financial condition and results of operation previously
delivered to Banks.
"Quarterly Date" means the last day of each March, June, September and
December.
"Rated" means with respect to Debt of a Person, that as of the date in
question such Debt is rated by both S & P and Moody's.
"Refinancing Debt" means Debt incurred by TEL or any of its Subsidiaries
after the Closing Date the proceeds of which are applied substantially
simultaneously with the receipt thereof to the repayment, retirement,
redemption, prepayment or defeasance of existing Debt of TEL or any of its
Subsidiaries (the "Refinanced Debt"); provided, that (a) any Refinancing Debt
shall be subordinate and junior to the Obligations and other Debt and
obligations of TEL and its Subsidiaries to the same (or greater) extent that
the Refinanced Debt was subordinate and junior to the Obligations and other
Debts and obligations of TEL and/or any of its Subsidiaries, and (b) the
Refinancing Debt shall not have a maturity date prior to the maturity date of
the Refinanced Debt or require the amortization of principal (whether pursuant
to any mandatory payment, prepayment, repurchase or other obligation) prior to
or in an amount greater than the amortization required under the terms of the
Refinanced Debt.
"Regulated Leases" means (a) Capital Leases, (b) Synthetic Leases, and
(c) Operating Leases other than Immaterial Operating Leases.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Part 221, as in effect from time to time.
"Rental Obligations" means amounts payable by a lessee under a lease
(whether a Capital Lease or an Operating Lease) including, without limitation,
amounts payable under any renewal or purchase option in favor of the lessee
which, if not paid, will result in a material forfeiture of rights, interests
or property available to such lessee (i.e. a forfeiture of rights, interests
or property with a fair market value materially greater than the cost of
exercising such renewal or purchase option).
"Request for Borrowing" has the meaning set forth in Section 2.2(a).
"Request for Letter of Credit" has the meaning set forth in Section
2.3(a).
"Required Banks" means Banks holding at least 66.67% of the Total
Commitment.
"Restricted Payment" means (a) any Distribution by TEL or any of its
Subsidiaries to any Person other than TEL, TEC or any wholly owned Subsidiary
of TEL or TEC, or (b) any retirement, redemption, purchase, repurchase,
payment or defeasance by TEL or any of its Subsidiaries of Debt of TEL or any
of its Subsidiaries other than the Obligation (including, without limitation,
the retirement, redemption, purchase, repurchase, payment or defeasance of the
1997 Notes or the 9x% Notes); provided, that "Restricted Payment" shall not
include (i) the payment at scheduled maturity of Debt permitted to be
outstanding hereunder by the Persons obligated to repay such Debt to the
extent such payment is not prohibited under the subordination provisions, if
any, applicable to such Debt, or (ii) the payment or prepayment of Debt owed
by TEL or any of its Subsidiaries to any other Subsidiary of TEL or to TEL
which is not prohibited pursuant to the terms of the Subordination Agreement
applicable to such Debt, if any.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Schedule" means a "schedule" attached to this Agreement and incorporated
herein by reference, unless specifically indicated otherwise.
"Section" refers to a "section" or "subsection" of this Agreement unless
specifically indicated otherwise.
"Senior Debt" of any Person means any Debt or other obligation of such
Person that is not Subordinate Debt.
"Senior Debt Ratings" means the actual or implied ratings assigned to
Senior Debt of TEL or TEC by Moody's and S&P determined in accordance with the
following: (a) if TEL has Rated Senior Debt outstanding, "Senior Debt Ratings"
means the ratings assigned to such Debt by Moody's and S&P, (b) if TEL has no
Rated Senior Debt outstanding, but TEC has Rated Senior Debt outstanding,
"Senior Debt Ratings" means the ratings assigned to such Debt by Moody's and
S&P, (c) if neither TEC nor TEL have Rated Senior Debt outstanding, but
implied ratings are published by Moody's and S&P for TEL's Senior Debt
(assuming that such Debt is outstanding), "Senior Debt Ratings" means such
published implied ratings, (d) if no implied Moody's and S&P ratings are
published for TEL's Senior Debt, but implied Moody's and S&P ratings are
published for TEC's Senior Debt (assuming that such Debt is outstanding),
"Senior Debt Ratings" means such published implied Senior Debt ratings, (e) if
no implied Moody's and S & P ratings are published for Senior Debt of either
TEL or TEC, but TEL has Rated Subordinate Debt outstanding, "Senior Debt
Ratings" means the ratings which are two ratings grades higher than the actual
Moody's and S & P ratings applicable to such Subordinated Debt, and (f) if TEL
has no Rated Subordinate Debt outstanding, but TEC has Rated Subordinate Debt
outstanding "Senior Debt Ratings" means the ratings which are two ratings
grades higher than the actual Moody's and S & P ratings applicable to such
Subordinate Debt. To the extent TEL or TEC has more than one issue of Debt
outstanding described in any individual clause above and such issues have
different Senior Debt Ratings, "Senior Debt Ratings" means the Senior Debt
Ratings applicable to the issue with the lowest Senior Debt Ratings.
"Subordinate Debt" of any Person means any Debt of such Person that by
its express terms provides that it ranks subordinate or junior in right of
payment to the payment of any other Debt of such Person.
"Subordination Agreement" means a Subordination Agreement in
substantially the form of Exhibit B, pursuant to which a Subsidiary of
either Borrower shall subordinate its right to payment on Debt of a Borrower
to the Obligations.
"Subsidiary" means, for any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions (including that of a general partner) are at the time directly or
indirectly owned, collectively, by such Person and any Subsidiaries of such
Person. The term Subsidiary shall include Subsidiaries of Subsidiaries (and
so on). Borrowers, Banks and Agent further agree that CTOC shall be deemed a
Subsidiary of TEL for all purposes of this Agreement other than Section7.3.
"Synthetic Lease" means any lease entered into in connection with the
lease or acquisition of fixed assets which is treated under GAAP as an
Operating Lease but for Tax purposes as a Capital Lease.
"Taxes" means all taxes, assessments, filing or other fees, levies,
imposts, duties, deductions, withholdings, stamp taxes, capital transaction
taxes, foreign exchange taxes or other charges, or other charges of any nature
whatsoever, from time to time or at any time imposed by Law or any
Governmental Authority. "Tax" means any one of the foregoing.
"TCI" means Triton Colombia, Inc., a Cayman Islands company which is a
wholly owned Subsidiary of TEL.
"TEC" means Triton Energy Corporation, a Delaware corporation, which is a
wholly owned Subsidiary of TEL.
"TEC Guaranty" means a Guaranty in substantially the form of Exhibit C
hereto with such revisions as Administrative Agent and Required Banks shall
deem necessary or appropriate, pursuant to which TEC shall guaranty payment
and performance in full of the Obligations.
"TEC Recharacterization Amendment" shall have the meaning given such term
in Section 2.13.
"TEL" means Triton Energy Limited, a Cayman Islands company.
"TEL Preferred Stock" means TEL's Convertible Preference Shares issued
and outstanding on the Closing Date.
"Termination Date" means August 30, 1998.
"TIOC" means Triton International Oil Corporation, a Delaware
corporation.
"TIOC-Cayman" means Triton International Oil Corporation, a Cayman
Islands company.
"TOCT" means Triton Oil Company of Thailand, a Texas corporation.
"TOCT (JDA)" means Triton Oil Company of Thailand (JDA) Limited, a Cayman
Islands company.
"Total Commitment" means the Commitment of all Banks in the aggregate
amount of $125,000,000 as such amount may be reduced from time to time
pursuant to Section 2.7 and 2.8 hereof.
"Transportation Assets" means gathering systems, transmission lines,
pipelines, pumps, compressors and other assets utilized for the transportation
of Hydrocarbons; "Transportation Assets" shall also include the Capital Stock
of (a) any Person, the primary business of which is the operation of gathering
systems, transmission lines, pipelines, pumps, compressors, and other assets
utilized in the transportation of Hydrocarbons, and (b) any Person the sole
assets of which are the Capital Stock of any Person described in clause (a)
preceding.
"Type" means with reference to a Tranche, the characterization of such
Tranche as an Adjusted Base Rate Tranche or a Eurodollar Tranche based on the
method by which the accrual of interest on such Tranche is calculated.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance
with GAAP, applied on a basis consistent with the most recent audited
consolidated financial statements of TEL and its Consolidated Subsidiaries
delivered to Banks except for changes concurred in by TEL's independent
certified public accountants and which are disclosed to Administrative Agent
on the next date on which financial statements are required to be delivered to
Banks pursuant to Sections 7.1(a), (b) or (c); provided that, unless
Required Banks shall otherwise agree in writing, no such change shall modify
or affect the manner in which compliance with the covenants contained in
Sections 8.1 and 8.13 are computed such that all such computations shall be
conducted utilizing financial information presented consistently with prior
periods.
SECTION 1.3. Petroleum Terms. As used herein, the terms "proved
reserves," "proved developed reserves," "proved developed producing reserves,"
"proved developed nonproducing reserves," and "proved undeveloped reserves"
have the meaning given such terms from time to time and at the time in
question by the Society of Petroleum Engineers of the American Institute of
Mining Engineers.
ARTICLE II
THE CREDIT
SECTION 2.1. Commitments. (a) Each Bank severally agrees,
subject to Section 2.1(c) and the other terms and conditions set forth in
this Agreement, to lend to Borrowers from time to time prior to the
Termination Date amounts not to exceed in the aggregate at any one time
outstanding, the amount of such Bank's Commitment reduced by an amount of such
Bank's Letter of Credit Exposure. Each Borrowing shall be in the aggregate
principal amount of $1,000,000 or any larger integral multiple of $100,000
(except that any Base Rate Borrowing may be in an amount equal to the
Availability) and shall be made by Banks ratably based on the amount of each
Bank's Commitment Percentage. Subject to the foregoing limitations and the
other provisions of this Agreement, prior to the Termination Date Borrowers
may obtain Borrowings under this Section 2.1(a), repay amounts borrowed and
request new Borrowings under this Section 2.1(a).
(b) Administrative Agent, or such Bank designated by
Administrative Agent which (without obligation to do so) consents to same
("Issuer") will, from time to time prior to the Termination Date, upon
request by either Borrower, issue Letters of Credit for the account of either
Borrower or any Subsidiary of TEL designated by either Borrower, so long as
(i) the sum of (A) the total Letter of Credit Exposure then existing, and (B)
the amount of the requested Letter of Credit does not exceed twenty percent
(20%) of the Total Commitment then in effect, and (ii) Borrowers would be
entitled to a Borrowing under Sections 2.1(a) and 2.1(c) in the amount of
the requested Letter of Credit. Not less than three (3) Domestic Business
Days prior to the requested date of issuance of any such Letter of Credit,
each Borrower (and any Subsidiary of TEL for whose account such Letter of
Credit is being issued) shall execute and deliver to Issuer, Issuer's
customary letter of credit application. Each Letter of Credit shall be in the
minimum amount of $10,000 and shall be in form and substance acceptable to
Administrative Agent and Issuer. No Letter of Credit shall have an expiration
date later than the earlier of (i) the thirtieth (30th) day prior to the
Termination Date, or (ii) eighteen (18) months from the date of issuance.
Upon the date of issuance of a Letter of Credit, Issuer shall be deemed to
have sold to each other Bank, and each other Bank shall be deemed to have
unconditionally and irrevocably purchased from Issuer, a nonrecourse
participation in the related Letter of Credit and Letter of Credit Exposure
equal to such Bank's Commitment Percentage of such Letter of Credit and Letter
of Credit Exposure. Upon request of any Bank, Administrative Agent shall
provide notice to such Bank by telephone, teletransmission or telex setting
forth each Letter of Credit issued and outstanding pursuant to the terms
hereof and specifying the Issuer, beneficiary and expiration date of each such
Letter of Credit, each Bank's percentage of each such Letter of Credit and the
actual dollar amount of each Bank's participation held by each Issuer for such
Bank's account and risk. If any Letter of Credit is presented for payment by
the beneficiary thereof, Administrative Agent shall cause an Adjusted Base
Rate Borrowing to be made to reimburse Issuer for the payment under such
Letter of Credit, whether or not Borrowers would then be entitled to a
Borrowing pursuant to the terms hereof, and each Bank shall be obligated to
lend its Commitment Percentage of such Adjusted Base Rate Borrowing. At the
time of issuance of each Letter of Credit, Borrowers shall pay to
Administrative Agent in respect of such Letter of Credit the applicable Letter
of Credit Fee and Letter of Credit Fronting Fee. Administrative Agent shall
distribute the Letter of Credit Fee payable upon the issuance of each Letter
of Credit to Banks in accordance with their respective Commitment Percentages,
and shall distribute the Letter of Credit Fronting Fee to Issuer for its own
account. The renewal or extension of any Letter of Credit shall be deemed to
be the issuance of a new Letter of Credit for purposes of this Agreement.
The Existing Letters of Credit shall be deemed to be Letters of Credit
issued and outstanding under this Agreement for all purposes of this Agreement
and with respect to which NationsBank of Texas, N.A. is the Issuer. Without
limiting the foregoing, each Bank shall be deemed to have purchased a
participation interest in such Existing Letters of Credit and the related
Letter of Credit Exposure in an amount equal to such Bank's Commitment
Percentage of such Letters of Credit and Letter of Credit Exposure. On the
Closing Date, Borrowers shall pay to Administrative Agent in respect of the
Existing Letters of Credit the applicable Letter of Credit Fronting Fee and
Letter of Credit Fee determined (in the case of the Letter of Credit Fee)
based on the remaining term of each Existing Letter of Credit as of the
Closing Date.
(c) Notwithstanding anything contained herein to the contrary,
there shall be a period of thirty (30) consecutive days during each period of
three hundred sixty five (365) days during which the Outstanding Credit shall
not exceed the sum of (a) $30,000,000, plus (b) the lesser of (i) the
aggregate Letter of Credit Exposure during such thirty (30) day period, or
(ii) $10,000,000.
SECTION 2.2. Method of Borrowing.
(a) In order to request a Borrowing hereunder, Borrowers shall
hand deliver, telex or telecopy to Administrative Agent a duly completed
Request for Borrowing (herein so called) prior to 11:00 a.m. (Dallas, Texas
time), (i) at least one (1) Domestic Business Day before the borrowing date
specified for a proposed Adjusted Base Rate Borrowing, and (ii) at least two
(2) Eurodollar Business Days before the borrowing date of a proposed
Eurodollar Borrowing. Each Request for Borrowing shall be substantially in
the form of Exhibit D hereto, and shall specify:
(i) the borrowing date of such Borrowing, which shall be a
Domestic Business Day in the case of an Adjusted Base Rate Borrowing or a
Eurodollar Business Day in the case of a Eurodollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether such Borrowing is to be an Adjusted Base Rate
Borrowing or a Eurodollar Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Request for Borrowing, Administrative
Agent shall promptly notify each Bank of the contents thereof and the amount
of the Borrowing to be loaned by such Bank pursuant thereto, and such Request
for Borrowing shall not thereafter be revocable by Borrowers.
(c) Not later than 12:00 noon (Dallas, Texas time) on the date
of each Borrowing, each Bank shall make available its Commitment Percentage of
such Borrowing in Federal or other funds immediately available in Dallas,
Texas to Administrative Agent at its address set forth on Schedule 1.
Notwithstanding the foregoing, if Borrowers deliver to Administrative Agent a
Request for Borrowing prior to 10:00 a.m. (Dallas, Texas time) on a Domestic
Business Day requesting an Adjusted Base Rate Borrowing on such day, each Bank
shall use its best efforts to make available to Administrative Agent its
Commitment Percentage of such Borrowing by 1:00 p.m. (Dallas, Texas time) on
the same day. Unless Administrative Agent determines that any applicable
condition specified in Section 5.2 has not been satisfied, Administrative
Agent will make the funds so received from Banks available to Borrowers by
depositing the same in the Joint Disbursement Account.
SECTION 2.3. Method of Obtaining Letters of Credit. (a) Borrowers
shall give Administrative Agent and any requested Issuer notice (a "Request
for Letter of Credit") prior to 12:00 noon (Dallas, Texas time) at least
three (3) Domestic Business Days before the date Borrowers request that a
Letter of Credit be issued. Each Request for Letter of Credit shall be
substantially in the form of Exhibit E and shall be accompanied by the
Issuer's executed, complete letter of credit application and agreement
referenced in Section 2.1(b).
(b) Upon receipt of a Request for Letter of Credit,
Administrative Agent shall promptly notify each Bank of the Issuer, term and
amount of the Letter of Credit to be issued pursuant thereto.
(c) Unless Administrative Agent or Issuer determines that any
applicable condition specified in Section 5.2 has not been satisfied, not
later than 12:00 noon (Dallas, Texas time) on the date Borrowers requested
that such Letter of Credit be issued, Issuer shall issue such Letter of Credit
and deliver the same to the beneficiary thereof and shall promptly thereafter
provide notice thereof to each other Bank.
SECTION 2.4. Notes. Each Bank's Commitment Percentage of the Loan
shall be evidenced by a single Note payable jointly and severally by Borrowers
to the order of such Bank in an amount equal to such Bank's Commitment.
SECTION 2.5. Interest Rates. (a) The principal amount of the
Loan outstanding from day to day which is the subject of an Adjusted Base Rate
Tranche shall bear interest at a rate per annum equal to the sum of the
Applicable Margin plus the Adjusted Base Rate in effect from day to day;
provided that in no event shall the rate charged hereunder or under the
Notes exceed the Maximum Lawful Rate. Interest on any portion of the
principal of the Loan subject to an Adjusted Base Rate Tranche shall be
payable as it accrues on each Quarterly Date.
(b) The principal amount of the Loan outstanding from day to
day which is the subject of a Eurodollar Tranche shall bear interest for the
Interest Period applicable thereto at a rate per annum equal to the sum of the
Applicable Margin plus the applicable Adjusted Eurodollar Rate; provided
that in no event shall the rate charged hereunder or under the Notes exceed
the Maximum Lawful Rate. Interest on any portion of the principal of the Loan
subject to a Eurodollar Tranche having an Interest Period of one (1), two (2)
or three (3) months shall be payable on the last day of the Interest Period
applicable thereto. Interest on any portion of the principal of any Loan
subject to a Eurodollar Tranche having an Interest Period of six (6) months
shall be payable on the last day of the Interest Period applicable thereto and
on each Quarterly Date during such Interest Period to the extent not
previously paid pursuant to the provisions of this Agreement.
(c) So long as no Default or Event of Default shall be
continuing, subject to the provisions of this Section 2.5, Borrowers shall
have the option of having all or any portion of the principal outstanding
under the Loan be the subject of an Adjusted Base Rate Tranche or one (1) or
more Eurodollar Tranches, which shall bear interest at rates based upon the
Adjusted Base Rate and the Adjusted Eurodollar Rate, respectively (each such
option is referred to herein as an "Interest Option"); provided, that each
Eurodollar Tranche shall be in a minimum amount of $500,000 and shall be in an
amount which is an integral multiple of $100,000. Each change in an Interest
Option made pursuant to this Section 2.5(c) shall be deemed both a payment
in full of the portion of the principal of the Loan which was the subject of
the Adjusted Base Rate Tranche or Eurodollar Tranche from which such change
was made and a Borrowing (notwithstanding that the unpaid principal amount of
the Loan is not changed thereby) of the portion of the principal of the Loan
which is the subject of the Adjusted Base Rate Tranche or Eurodollar Tranche
into which such change was made. Prior to the termination of each Interest
Period with respect to each Eurodollar Tranche, Borrowers shall give written
notice (a "Rollover Notice") in the form of Exhibit F attached hereto to
Administrative Agent of the Interest Option which shall be applicable to such
portion of the principal of the Loan upon the expiration of such Interest
Period. Such Rollover Notice shall be given to Administrative Agent at least
one (1) Domestic Business Day, in the case of an Adjusted Base Rate Tranche
selection on or prior to 11:00 a.m. (Dallas, Texas time) and two (2)
Eurodollar Business Days, in the case of a Eurodollar Tranche selection, prior
to the termination of the Interest Period then expiring. If Borrowers shall
specify a Eurodollar Tranche, such Rollover Notice shall also specify the
length of the succeeding Interest Period (subject to the definition of such
term) selected by Borrowers. Each Rollover Notice shall be irrevocable and
effective upon notification thereof to Administrative Agent. If the required
Rollover Notice shall not have been timely received by Administrative Agent,
Borrowers shall be deemed to have elected that the principal of the Loan
subject to the Interest Period then expiring be the subject of an Adjusted
Base Rate Tranche upon the expiration of such Interest Period and Borrowers
will be deemed to have given Administrative Agent notice of such election.
Subject to the limitations set forth in this Section 2.5(c) on the minimum
amount of Eurodollar Tranches, Borrowers shall have the right to convert each
Adjusted Base Rate Tranche to a Eurodollar Tranche by giving Administrative
Agent a Rollover Notice of such election on or prior to 11:00 a.m. (Dallas,
Texas time) at least two (2) Eurodollar Business Days prior to the date on
which Borrowers elect to make such conversion (an "Interest Conversion
Date"). The Interest Conversion Date selected by Borrowers shall be a
Eurodollar Business Day. Notwithstanding anything in this Section 2.5 to
the contrary, no portion of the principal of the Loan which is the subject of
an Adjusted Base Rate Tranche may be converted to a Eurodollar Tranche and no
Eurodollar Tranche may be continued as such when any Default or Event of
Default has occurred and is continuing, but each such Tranche shall be
automatically converted to an Adjusted Base Rate Tranche on the last day of
each applicable Interest Period. Borrowers shall not be permitted to have
more than five (5) Interest Options in effect at any time.
(d) Notwithstanding anything to the contrary set forth in
Section 2.5(a) or (b) above, any portion of the Obligation not paid when due
(including, to the extent permitted by Applicable Law, past due interest)
shall bear interest from and after the date due, payable on demand, for each
day until paid at a rate per annum equal to the lesser of (a) the sum of (i)
three percent (3%), plus (ii) the Adjusted Base Rate in effect from day to
day, and (b) the Maximum Lawful Rate.
(e) Notwithstanding the foregoing, if at any time the rate of
interest calculated with reference to the Adjusted Base Rate or the Adjusted
Eurodollar Rate hereunder (the "contract rate") is limited to the Maximum
Lawful Rate, any subsequent reductions in the contract rate shall not reduce
the rate of interest on the Loan below the Maximum Lawful Rate until the total
amount of interest accrued equals the amount of interest which would have
accrued if the contract rate had at all times been in effect. In the event
that at maturity (stated or by acceleration), or at final payment of any Note,
the total amount of interest paid or accrued on such Note is less than the
amount of interest which would have accrued if the contract rate had at all
times been in effect with respect thereto, then at such time, to the extent
permitted by law, Borrowers shall pay to the holder of such Note an amount
equal to the difference between (i) the lesser of the amount of interest which
would have accrued if the contract rate had at all times been in effect and
the amount of interest which would have accrued if the Maximum Lawful Rate had
at all times been in effect, and (ii) the amount of interest actually paid on
such Note.
(f) Interest payable hereunder computed by reference to the
Adjusted Eurodollar Rate shall be computed based on the number of actual days
elapsed assuming that each calendar year consisted of 360 days. Interest
payable hereunder computed by reference to the Adjusted Base Rate shall be
computed based on the actual number of days elapsed assuming that each
calendar year consisted of 365 days.
SECTION 2.6. Voluntary Prepayments. Borrowers may, without penalty
except as provided in Section 4.1 and the other provisions of this
Agreement, upon one (1) Domestic Business Day advance notice to Administrative
Agent, prepay the principal of the Loan in whole or in part. Any partial
prepayment shall be in a minimum amount of $500,000 and shall be in an
integral multiple of $100,000.
SECTION 2.7. Voluntary Reduction of Commitments. Borrowers may, by
notice to Administrative Agent three (3) Domestic Business Days prior to the
effective date of any such reduction, reduce the Total Commitment (and thereby
reduce the Commitment of each Bank ratably) in amounts not less than
$10,000,000 or any larger multiple of $1,000,000. Notwithstanding the
foregoing, Borrowers shall not be permitted to voluntarily reduce the Total
Commitment to an amount less than the Outstanding Credit.
SECTION 2.8. Reduction of Commitments at the Option of Required Banks.
Required Banks may, at their option, reduce the Total Commitment, (and the
Commitments of each Bank ratably) at the times and in the amounts permitted by
Section 8.5(a). On the effective date of any such reduction, Borrowers
shall, to the extent required as a result of such reduction, make a principal
payment on the Loan (and cause outstanding Letters of Credit to be cancelled,
reduced or cash collateralized in the manner contemplated by Section 9.1) in
an amount sufficient to cause the Outstanding Credit to be equal to or less
than the Total Commitment as thereby reduced.
SECTION 2.9. Termination of Commitments; Final Maturity. The Total
Commitment (and the Commitment of each Bank) shall terminate, and the entire
outstanding principal balance of the Loan, all Letter of Credit reimbursement
obligations, all interest accrued thereon, all accrued but unpaid fees
hereunder and all other outstanding Obligations shall be due and payable in
full on the Termination Date.
SECTION 2.10. Commitment Fee. On the Termination Date, on each
Quarterly Date prior to the Termination Date, and, in the event the
Commitments are terminated in their entirety prior to the Termination Date, on
the date of such termination, Borrowers shall pay to Administrative Agent, for
the ratable benefit of each Bank based on each Bank's Commitment Percentage, a
commitment fee equal to the Commitment Fee Percentage (applied on a per annum
basis and computed on the basis of actual days elapsed and as if each calendar
year consisted of 365 days) of the average daily Availability for the Fiscal
Quarter (or portion thereof) ending on such date.
SECTION 2.11. Closing Fee. On the Closing Date, Borrowers shall pay
to Administrative Agent a closing fee in the amount of $520,000. Such closing
fee shall be allocated and distributed by Administrative Agent to Banks in
accordance with Schedule 1 hereto.
SECTION 2.12. Administrative Agency/Arrangement Fees. Borrowers
shall pay to each Administrative Agent and its Affiliates such other fees and
amounts as Borrowers shall be required to pay to Administrative Agent and its
Affiliates from time to time pursuant to any separate agreement between either
Borrower and Administrative Agent or such Affiliates. Such fees and other
amounts shall be retained by such Agent and its Affiliates, and no Bank (other
than such Agent) shall have any interest therein.
SECTION 2.13. Recharacterization of TEC as Guarantor. Banks hereby
agree that upon request of Borrowers, Banks will enter into amendments to this
Agreement and the other Loan Papers in form and substance acceptable to
Required Banks the effect of which is to recharacterize the obligations of TEC
under this Agreement and the other Loan Papers as a guarantor rather than a
Borrower (collectively, the "TEC Recharacterization Amendment"). The
obligation of Banks to enter into the TEC Recharacterization Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) no Default or Event of Default shall have occurred which is
continuing;
(b) TEC shall have executed and delivered the TEC Guaranty; and
(c) TEC and TEL shall have delivered to Administrative Agent such
resolutions, certificates, opinions of counsel and other documents as
Administrative Agent and Required Banks shall reasonably require to verify the
existence of TEL and its Subsidiaries, the corporate authority for the
execution, delivery and performance of the TEC Recharacterization Amendment
and the TEC Guaranty, the validity, enforceability and binding effect of the
TEC Recharacterization Amendment and the TEC Guaranty and other matters
relevant thereto, all in form and substance satisfactory to Administrative
Agent and Required Banks.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.1. Delivery and Endorsement of Notes. Simultaneously with
the execution of this Agreement, Administrative Agent shall deliver to each
Bank the Note payable to such Bank referenced in Section 5.1(a)(i). Each
Bank may endorse on the schedules forming a part thereof appropriate notations
to evidence the date of each Borrowing and its Commitment Percentage of the
amount of such Borrowing, the Interest Period applicable thereto, and the date
and amount of each payment of principal made by Borrowers with respect each
Borrowing, provided that the failure by any Bank to so endorse its Note
shall not affect the joint and several liability of Borrowers for the
repayment of all amounts outstanding under such Note together with interest
thereon. Each Bank is hereby irrevocably authorized by Borrowers to endorse
its Note and to attach to and make a part of any Note a continuation of any
such schedule as required.
SECTION 3.2. General Provisions as to Payments. (a)
Borrowers shall make each payment of principal of, and interest on, the Loan
and all fees payable hereunder not later than 12:00 noon (Dallas, Texas time)
on the date when due, in Federal or other funds immediately available in
Dallas, Texas, to Administrative Agent at its address set forth on Schedule
1 hereto. Administrative Agent will promptly (and if such payment is
received by Administrative Agent by 10:00 a.m., and otherwise if reasonably
possible, on the same Domestic Business Day) distribute to each Bank its
Commitment Percentage (unless this Agreement expressly provides otherwise) of
each such payment received by Administrative Agent for the account of Banks.
Whenever any payment of principal of, or interest on, any portion of the Loan
subject to an Adjusted Base Rate Tranche or of fees shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, any portion of the Loan subject to a
Eurodollar Tranche shall be due on a day which is not a Eurodollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Eurodollar Business Day (subject to the definition of Interest Period). If
the date for any payment of principal is extended by operation of Law or
otherwise, interest thereon shall be payable for such extended time.
Borrowers hereby authorize Administrative Agent to charge from time to time
against either Borrower's accounts with Administrative Agent any amount then
due.
(b) Prior to the occurrence of an Event of Default, all
principal payments received by Banks with respect to the Loan shall be applied
first to Eurodollar Tranches outstanding with Interest Periods ending on the
date of such payment, then to Adjusted Base Rate Tranches, and then to
Eurodollar Tranches next maturing until such principal payment is fully
applied.
(c) After the occurrence of an Event of Default, all amounts
collected or received by Administrative Agent or any Bank shall be applied
first to the payment of all proper costs incurred by Administrative Agent in
connection with the collection thereof (including reasonable expenses and
disbursements of Administrative Agent), second to the payment of all proper
costs incurred by Banks in connection with the collection thereof (including
reasonable expenses and disbursements of Banks), third to the reimbursement of
any advances made by Banks to effect performance of any unperformed covenants
of either Borrower under any of the Loan Papers, fourth to the payment of any
unpaid fees required pursuant to Section 2.12, fifth to the payment of any
unpaid fees required pursuant to Sections2.1(b) and 2.10, sixth to the
payment to each Bank of its Commitment Percentage of outstanding principal of
the Loan and accrued but unpaid interest thereon, and seventh to establish the
deposits required in Section 9.1. All payments received by a Bank after the
occurrence of an Event of Default for application to the principal of the Loan
shall be applied by such Bank in the manner provided in Section 3.2(b).
SECTION 3.3. Capital Adequacy. Notwithstanding any provision
contained herein to the contrary, if, with respect to all or any portion of
any Commitment, any Law is hereafter promulgated or adopted regarding capital
adequacy, or any change is hereafter made or adopted with respect to any
existing Law regarding capital adequacy, or any ruling or interpretation
regarding capital adequacy is hereafter made by any Governmental Authority or
central bank or other comparable authority, or any Bank complies with any
request or directive hereafter made by any Governmental Authority or central
bank or other comparable authority regarding capital adequacy (whether or not
having the force of Law), and the effect of any of the foregoing is to cause a
reduction in the rate of return on such Bank's capital as a consequence of
such Bank's obligations hereunder to a level below that which such Bank
otherwise could have achieved (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Bank to be material
(and such Bank may, in determining such amount, utilize such assumptions and
allocations of costs and expenses as such Bank shall deem reasonable and may
use any reasonable averaging or attribution method), then, such Bank shall
notify Borrowers and Administrative Agent and deliver to Borrowers and
Administrative Agent a certificate setting forth in reasonable detail (a) the
Law (or change therein or change in interpretation thereof) giving rise to
such request for compensation, and (b) the calculation of the amount necessary
to compensate such Bank therefor, which certificate shall constitute
conclusive evidence of the contents thereof. Borrowers shall promptly pay
such amount to such Bank.
SECTION 3.4. Taxes. All amounts payable by Borrowers under the Loan
Papers (whether principal, interest, fees, expenses, or otherwise) to or for
the account of each Bank shall be paid in full, free of any deductions or
withholdings for or on account of any Taxes. If Borrowers are prohibited by
Law from paying any such amount free of any such deductions and withholdings,
then (at the same time and in the same manner that such original amount is
otherwise due under the Loan Papers) Borrowers shall pay to or for the account
of such Bank such additional amount as may be necessary in order that the
actual amount received by such Bank after deduction and/or withholding (and
after payment of any additional Taxes due as a consequence of the payment of
such additional amount, and so on) will equal the amount such Bank would have
received if such deduction or withholding were not made.
SECTION 3.5. Foreign Lenders, Participants, and Assignees. Each Bank,
Participant (by accepting a participation interest under this Agreement), and
Assignee (by executing an Assignment and Assumption Agreement) that is not
organized under the laws of the United States of America or one of its states
(a) represents to Administrative Agent and each Borrower that (i) no Taxes
assessed by any Governmental Authority in the United States are required to
be withheld by Administrative Agent or Borrowers with respect to any payments
to be made to it in respect of the Obligations and (ii) it has furnished to
Administrative Agent and Borrowers two (2) duly completed copies of either
U.S. Internal Revenue Service Form 4224, Form 1001, Form W-8, or other form
acceptable to Administrative Agent that entitles it to exemption from U.S.
federal withholding Tax on all interest payments under the Loan Papers, and
(b) covenants to (i) provide Administrative Agent and Borrowers a new Form
4224, Form 1001, Form W-8, or other form acceptable to Administrative Agent
upon the expiration or obsolescence of any previously delivered form according
to applicable laws and regulations, duly executed and completed by it, and
(ii) comply from time to time with all applicable laws and regulations with
regard to the withholding Tax exemption. If any of the foregoing is not true
or the applicable forms are not provided, then Borrowers and Administrative
Agent (without duplication) may deduct and withhold from interest payments
under the Loan Papers any United States federal income Tax at the maximum rate
under the Code without reimbursement pursuant to Section 3.4.
SECTION 3.6. Replacement of a Bank. If any Bank has requested
compensation or reimbursement in accordance with the terms of Sections 3.3,
3.4 or 4.4 hereof or any Bank has notified Administrative Agent and
Borrowers that its obligation to fund or maintain any portion of the Loan
subject to a Eurodollar Tranche has been suspended pursuant to Section 4.3
hereof, and (a) such request or notification is not the result of any uniform
changes in the statutes or regulations for capital adequacy or eurodollar
deposits generally, (b) there exists no Default or Event of Default hereunder,
and (c) Borrowers and such Bank are unable to reach a written agreement
regarding such request or suspension within thirty (30) days following written
notice by such Bank to Borrowers and Administrative Agent of such request or
suspension, then after the expiration of thirty (30) days following the
delivery of the notice under Sections 3.3, 3.4, 4.3 or 4.4, Borrowers may
replace such Bank in whole with an Assignee reasonably acceptable to
Administrative Agent pursuant to an Assignment and Assumption Agreement in
accordance with Section 12.10 hereof. Borrowers shall reimburse or
compensate any Bank which is replaced in accordance with the terms of
Sections 3.3, 3.4 or 4.4 for any amounts accruing prior to the effective
date of such replacement.
ARTICLE IV
SPECIAL PROVISIONS REGARDING EURODOLLAR TRANCHE
SECTION 4.1. Funding Losses. If Borrowers make any payment of
principal subject to a Eurodollar Tranche (whether pursuant to Sections
2.1(c), 2.6, 2.7, 2.8, 2.9 or 9.1, the remaining provisions of this Article
IV or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or if Borrowers fail to prepay any Eurodollar Borrowing
after notice has been given to any Bank in accordance with Section 2.6 or
2.7, or if Borrowers fail to borrow any Eurodollar Borrowing (including any
Borrowing resulting from a rollover of a prior Eurodollar Tranche or a
Conversion to a Eurodollar Tranche) after notice has been given to any Bank in
accordance with Section 2.2 or 2.5, Borrowers shall reimburse each Bank on
demand for any resulting loss or expense incurred by it, including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, or any loss arising from the reemployment of funds at
rates lower than the cost to such Bank of such funds and related costs, which
in the case of the payment or prepayment prior to the end of the Interest
Period for any Eurodollar Tranche shall include the amount, if any, by which
(i) the interest which such Bank would have received, absent such payment or
prepayment for the applicable Interest Period exceeds (ii) the interest which
such Bank would receive if the amount of such Eurodollar Tranche were
deposited, loaned, or placed by such Bank in the interbank eurodollar market
on the date of such payment or prepayment for the remainder of the applicable
Interest Period. Such Bank shall promptly deliver to Borrowers and
Administrative Agent a certificate as to the amount of such loss or expense,
which certificate shall be conclusive in the absence of manifest error.
SECTION 4.2. Basis for Determining Interest Rate Applicable to
Eurodollar Tranches Inadequate. If on or prior to the first day of any
Interest Period with respect to a Eurodollar Tranche, Required Banks advise
Administrative Agent that the Adjusted Eurodollar Rate as determined by
Administrative Agent will not adequately and fairly reflect the cost to such
Banks of funding their respective share of such Eurodollar Tranche for such
Interest Period, Administrative Agent shall give notice thereof to Borrowers
and Banks, whereupon the obligations of Banks to fund such Eurodollar Tranche
shall be suspended until Administrative Agent notifies Borrowers that the
circumstances giving rise to such suspension no longer exist. If Borrowers
notify Administrative Agent at least one (1) Domestic Business Day before the
commencement of the Interest Period applicable to a Eurodollar Tranche for
which a Request for Borrowing or Notice of Conversion has previously been
given that it elects not to borrow or convert to a Eurodollar Interest Option
on such date, then such Borrowing shall instead be made as an Adjusted Base
Rate Borrowing or such Conversion shall not be made (as applicable).
SECTION 4.3. Illegality of Eurodollar Tranche. (a) If, after
the date of this Agreement, the adoption of any Law or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by any Bank (or its Eurodollar
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank (or its Eurodollar Lending Office) to
make, maintain or fund any portion of the Loan subject to a Eurodollar Tranche
and such Bank shall so notify Administrative Agent, Administrative Agent shall
forthwith give notice thereof to the other Banks and Borrowers. Until such
Bank notifies Borrowers and Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Bank to fund
or maintain any portion of the Loan subject to a Eurodollar Tranche shall be
suspended. Before giving any notice to Administrative Agent pursuant to this
Section 4.3, such Bank shall designate a different Eurodollar Lending Office
if such designation will avoid the need for giving such notice and will not,
in the judgment of such Bank, be otherwise disadvantageous to such Bank. If
such Bank shall determine that it may not lawfully continue to maintain and
fund any portion of the Loan subject to a Eurodollar Tranche to maturity and
shall so specify in such notice, Borrowers shall immediately convert the
principal amount of the Loan owed to such Bank subject to Eurodollar Tranches
to an Adjusted Base Rate Tranche of an equal principal amount from such Bank
(on which interest and principal shall be payable contemporaneously with
interest and principal payments payable on the unaffected Eurodollar Tranches
of the other Banks).
(b) No Bank shall be required to fund its Commitment Percentage
of any Eurodollar Borrowing hereunder if the funding of such Borrowing would
be in violation of any Law applicable to such Bank.
SECTION 4.4. Increased Cost of Eurodollar Tranche. If after the
date hereof, the adoption of any applicable Law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or
its Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:
(a) shall subject any Bank (or its Lending Office) to any Tax,
duty or other charge with respect to maintaining or funding any portion of the
Loan subject to a Eurodollar Tranche, its Note or its obligation to allow
interest to be computed by reference to the Adjusted Eurodollar Rate or shall
change the basis of taxation of payments to any Bank (or its Lending Office)
of the principal of or interest on the Loan which is subject to any Eurodollar
Tranche or any other amounts due under this Agreement in respect of any
Eurodollar Tranche or its obligation to allow interest to be computed by
reference to the Adjusted Eurodollar Rate (except for changes in the rate of
Tax on the overall net income of such Bank or its Lending Office imposed by
the jurisdiction in which such Bank's principal executive office or Lending
Office is located); or
(b) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Eurodollar Tranche any such requirement
included in an applicable Eurodollar Reserve Percentage) against assets of,
deposits with or for the account of or credit extended by, any Bank's Lending
Office or shall impose on any Bank (or its Lending Office) or the applicable
interbank eurodollar market or any other condition affecting Eurodollar
Tranches, its Note or its obligation to allow interest to be computed by
reference to the Adjusted Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of funding or maintaining any Eurodollar Tranche, or
to reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Note with respect thereto,
by an amount deemed by such Bank to be material, then, within five (5)
Domestic Business Days after demand by such Bank (with a copy to
Administrative Agent), Borrowers shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
Each Bank will promptly notify Borrowers and Administrative Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section 4.4 and will designate a
different Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section 4.4 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
SECTION 4.5. Adjusted Base Rate Tranche Substituted for Affected
Eurodollar Tranche. If (a) the obligation of any Bank to fund or maintain
any portion of any Loan subject to a Eurodollar Tranche has been suspended
pursuant to Section 4.3 or (b) any Bank has demanded compensation under
Section 4.4 and Borrowers shall, by at least five (5) Eurodollar Business
Days prior notice to such Bank through Administrative Agent, have elected that
the provisions of this Section 4.5 shall apply to such Bank, then, unless
and until such Bank notifies Borrowers that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) any Tranche which would otherwise be characterized by such
Bank as Eurodollar Tranche shall instead be deemed an Adjusted Base Rate
Tranche (on which interest and principal shall be payable contemporaneously
with the unaffected Eurodollar Tranches of the other Banks); and
(b) after all of its Eurodollar Tranches have been repaid, all
payments of principal which would otherwise be applied to repay Eurodollar
Tranches shall be applied to repay its Adjusted Base Rate Tranches instead.
SECTION 4.6. Discretion of Banks as to Manner of Funding.
Notwithstanding any provisions of this Agreement to the contrary, each Bank
shall be entitled to fund and maintain its funding of all or any part of its
Commitment in any manner it sees fit, it being understood, however, that for
the purposes of this Agreement all determinations hereunder shall be made as
if such Bank had actually funded and maintained each Eurodollar Tranche during
the Interest Period for such Eurodollar Tranche through the purchase of
deposits having a maturity corresponding to the last day of such Interest
Period and bearing an interest rate equal to the Adjusted Eurodollar Rate for
such Interest Period.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1. Conditions to Initial Borrowing and Participation in
Letter of Credit Exposure. The obligation of each Bank to loan its
Commitment Percentage of the initial Borrowing made hereunder, and the
obligation of Administrative Agent or any Issuer to issue the initial Letter
of Credit issued hereunder is subject to the satisfaction of each of the
following conditions:
(a) Administrative Agent shall have received each of the
following documents, instruments and agreements, each of which shall be in
form and substance and executed in such counterparts as shall be acceptable to
Administrative Agent and each Bank and each of which shall, unless otherwise
indicated, be dated the Closing Date:
(i) a Note payable to the order of each Bank, each in the amount of
such Bank's Commitment, duly executed by each Borrower;
(ii) a copy of the Articles of Association, Certificate of
Incorporation or comparable charter documents, and all amendments thereto, of
each Borrower accompanied by a certificate that such copy is true, correct and
complete, and dated within ten (10) days of the Closing Date, issued by the
appropriate Governmental Authority of the jurisdiction of organization of each
Borrower;
(iii) a copy of the Articles of Association, Certificate of
Incorporation, Bylaws or comparable charter documents, and all amendments
thereto, of each Borrower and each Material Subsidiary or other Subsidiary of
TEL which is a party to any Loan Paper accompanied by a certificate of the
Secretary or comparable Authorized Officer of each Borrower and each such
Material Subsidiary (or other Subsidiary) that such copy is true, correct and
complete as of the date hereof;
(iv) certificates and other documents issued by the appropriate
Governmental Authorities of such jurisdictions as Administrative Agent has
requested relating to the existence of each Borrower and each Material
Subsidiary or other Subsidiary of TEL which is a party to any Loan Paper which
certificates will evidence that each such Person is in good standing with
respect to the payment of franchise and other Taxes and is duly qualified to
transact business in such jurisdictions;
(v) a certificate of incumbency of all officers of each Borrower and
each Material Subsidiary or other Subsidiary of TEL which is a party to any
Loan Paper who will be authorized to execute or attest to any Loan Paper,
executed by the Secretary or comparable Authorized Officer of each Borrower;
(vi) copies of resolutions or comparable authorizations approving
the Loan Papers and authorizing the transactions contemplated by the Loan
Papers, duly adopted by the Board of Directors or comparable authority of each
Borrower and each Material Subsidiary or other Subsidiary of TEL which is a
party to any Loan Paper accompanied by certificates of the Secretary or
comparable officer of each Borrower and each Material Subsidiary or other
Subsidiary of TEL which is a party to any Loan Paper that such copies are true
and correct copies of resolutions duly adopted at a meeting of or (if
permitted by applicable Law and, if required by such Law, by the Bylaws or
other charter documents of such Borrower and each Material Subsidiary or other
Subsidiary of TEL which is a party to any Loan Paper) by the unanimous written
consent of the Board of Directors of each Borrower and each Material
Subsidiary or other Subsidiary of TEL which is a party to any Loan Paper, and
that such resolutions constitute all the resolutions adopted with respect to
such transactions, have not been amended, modified, or revoked in any respect,
and are in full force and effect as of the date hereof;
(vii) a Solvency Certificate in the form of Exhibit G hereto duly
executed by the Financial Officer of TEC;
(viii) Subordination Agreements executed by each Subsidiary of
either Borrower which hold Debt obligations of either Borrower as of the
Closing Date;
(ix) an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel for
Borrowers, in form and substance satisfactory to Administrative Agent and
Banks;
(x) an opinion of ▇.▇. ▇▇▇▇▇▇ & Company, special Cayman Islands
counsel for TEL and its Subsidiaries in form and substance satisfactory to
Administrative Agent and Banks;
(xi) an opinion of ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Abogados,
S.A., Colombian counsel for TEL and its Subsidiaries, in form and substance
satisfactory to Administrative Agent and Banks;
(xii) an opinion of Weil, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., special U.S.
federal income tax counsel for TEL and its Subsidiaries, in form and substance
satisfactory to Administrative Agent and Banks;
(xiii) an opinion of ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Abogados,
S.A., Colombian Tax counsel for TEL and its Subsidiaries, in form and
substance satisfactory to Administrative Agent and Banks;
(xiv) an opinion of Gardere & ▇▇▇▇▇, L.L.P., special counsel for
Administrative Agent, in form and substance satisfactory to Administrative
Agent; and
(xv) a certificate signed by an Authorized Officer stating that (A)
the representations and warranties contained in this Agreement and the other
Loan Papers are true and correct in all respects, (B) no Default or Event of
Default has occurred and is continuing, and (C) all conditions set forth in
this Section 5.1 and Section 5.2 have been satisfied.
(b) TEC's existing Credit Agreement with Banque Paribas as agent
and certain other lenders shall have been terminated, all obligations of TEL
and its Subsidiaries thereunder shall have been paid and performed in full
(other than reimbursement obligations related to a letter of credit issued
thereunder in the amount of $1,635,368.23 issued to Banco de la Produccion,
S.A. as beneficiary which shall remain outstanding) and all Liens securing
payment and performance of such obligations shall have been released.
(c) In the sole discretion of each Bank, no event shall have
occurred or condition shall exist which, in the sole discretion of any Bank,
has had or may have a Material Adverse Effect.
(d) The transactions contemplated by this Agreement shall be
permitted by applicable Law and regulation and shall not subject any Agent,
any Bank, TEL or any Subsidiary of TEL to any material adverse condition or
circumstance.
(e) No litigation, arbitration or similar proceeding shall be
pending or threatened which calls into question the validity or enforceability
of this Agreement, the other Loan Papers or the transactions contemplated
hereby or thereby.
(f) Borrowers shall have paid to Administrative Agent for the
benefit of each Bank the fees to be paid on the Closing Date pursuant to
Sections 2.1(b) and 2.11 and to Administrative Agent any fees to be paid
on the Closing Date to such Agent pursuant to Section 2.12.
(g) All matters related to this Agreement, the other Loan
Papers, TEL and its Subsidiaries shall be acceptable to each Bank in its sole
discretion, and Borrowers shall have delivered to Administrative Agent and
each Bank such evidence as they shall request to substantiate any matters
related to this Agreement, the other Loan Papers, TEL and its Subsidiaries as
Administrative Agent or any Bank shall request.
SECTION 5.2. Conditions to each Borrowing and each Letter of Credit.
The obligation of each Bank to loan its Commitment Percentage of each
Borrowing and the obligation of the Issuer to issue a Letter of Credit on the
date such Letter of Credit is to be issued is subject to the further
satisfaction of the following conditions:
(a) timely receipt by Administrative Agent of a Request for
Borrowing or a Request for Letter of Credit (as applicable);
(b) immediately before and after giving effect to such Borrowing
or issuance of such Letter of Credit, no Default or Event of Default shall
have occurred which is continuing and the making of any Loan in connection
with such Borrowing or the issuance of the requested Letter of Credit (as
applicable) shall not cause a Default or Event of Default;
(c) the representations and warranties of each Borrower
contained in this Agreement and the other Loan Papers shall be true and
correct in all material respects on and as of the date of such Borrowing or
issuance of such Letter of Credit (as applicable);
(d) the amount of the requested Borrowing or the amount of the
requested Letter of Credit (as applicable) shall not exceed the Availability;
(e) no event shall have occurred or condition shall exist which
has had or is reasonably expected to have a Material Adverse Effect; and
(f) the funding of such Borrowing or the issuance of such Letter
of Credit (as applicable) shall be permitted by applicable Law.
Each Borrowing and the issuance of each Letter of Credit hereunder shall be
deemed to be a representation and warranty by each Borrower on the date of
such Borrowing and the date of issuance of each Letter of Credit as to the
facts specified in Sections 5.2(b) through (f).
SECTION 5.3. Materiality of Conditions. Each condition precedent
herein is material to the transactions contemplated herein, and time is of the
essence in respect of each thereof.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to each Agent and each Bank as
follows:
SECTION 6.1. Existence and Power. Each Borrower and each Material
Subsidiary (a) is a corporation, limited liability company or partnership duly
incorporated or organized (as applicable) (or its predecessor was duly
incorporated or organized in the case of a Person in existence as a result of
the migration or transfer of charter from another jurisdiction) and is validly
existing and in good standing under the laws of its current jurisdiction of
incorporation or organization (as applicable), (b) has all corporate, limited
liability company or partnership power (as applicable) and all material
governmental licenses, authorizations, consents and approvals required to
carry on its businesses as now conducted and as proposed to be conducted, and
(c) is duly qualified to transact business as a foreign corporation, foreign
limited liability company or foreign partnership (as applicable) in each
jurisdiction where a failure to be so qualified, licensed or authorized could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.2. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance of this Agreement,
the Notes and the other Loan Papers by each Borrower (a) are within such
Borrower's corporate powers, (b) have been duly authorized by all necessary
corporate action, (c) require no action by or in respect of, or filing with,
any Governmental Authority, and (d) do not contravene, or constitute a default
under, any provision of Law applicable to either Borrower or any of the
Material Subsidiaries (including, without limitation, the Margin Regulations)
or of the Articles of Association, Certificate of Incorporation, bylaws and
other charter documents of either Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon either Borrower or
any of the Material Subsidiaries or result in the creation or imposition of
any Lien on any asset of TEL or any of the Material Subsidiaries.
SECTION 6.3. Binding Effect. This Agreement constitutes a valid
and binding agreement of each Borrower. The Notes and the other Loan Papers
when executed and delivered in accordance with this Agreement, will constitute
valid and binding obligation of each Borrower, and each Loan Paper is
enforceable against each Borrower in accordance with its terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors rights generally, and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
SECTION 6.4. Financial Information. (a) The audited consolidated
balance sheet of TEC and its Consolidated Subsidiaries as of December 31, 1995
and the related audited consolidated statements of operations and cash flows
for the Fiscal Year then ended, copies of which have been delivered to Banks
were prepared in conformity with GAAP and fairly present the consolidated
financial position of TEC and its Consolidated Subsidiaries as of the end of
such Fiscal Year and its consolidated results of operations and cash flows for
such Fiscal Year.
(b) The unaudited consolidated balance sheets of each of TCI and
TIOC and their respective Consolidated Subsidiaries dated as of December 31,
1995 and the related unaudited consolidated statements of operations and cash
flows for the Fiscal Year then ended, copies of which have been delivered to
Banks fairly present the consolidated financial position of each of TCI and
TIOC and their respective Consolidated Subsidiaries as of the end of such
Fiscal Year and their respective consolidated results of operations and cash
flows for such Fiscal Year.
(c) The unaudited consolidated balance sheets of each of TEL and
TEC, and their respective Consolidated Subsidiaries as of March 31, 1996 and
the related unaudited consolidated statements of operations and cash flows for
the Fiscal Quarter and the portion of the Fiscal Year then ended, copies of
which have been delivered to Banks, fairly present the consolidated financial
position of each of TEL and TEC, and their respective Consolidated
Subsidiaries as of the end of such Fiscal Quarter and their respective
consolidated results of operations and cash flows for such Fiscal Quarter and
the portion of such Fiscal Year then ended. In the case of TEL, such
consolidated financial statements were prepared in accordance with GAAP
(subject to year end adjustments which will not have a material adverse effect
on the financial information presented therein) and in the case of TEC, such
consolidated financial statements were derived from the underlying accounting
records of TEL which have been prepared in accordance with GAAP.
(d) The Projections were prepared in conformity with Borrowers'
standard practices and the assumptions upon which they were based do not
deviate in any material respect from those used by Borrowers for their
internal financial planning purposes.
(e) (i) The fair value of the property of each Borrower is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Borrower, (ii) the present fair saleable value
of the assets of each Borrower is not less than the amount that will be
required to pay the liabilities of such Borrower on its debts as they become
absolute and matured, (iii) each Borrower is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (iv) neither
Borrower intends to, and neither Borrower believes that it will, incur debts
or liabilities beyond its ability to pay as such debts and liabilities mature,
and (v) neither Borrower is engaged in a business or transaction, and neither
Borrower is about to engage in a business or transaction for which such
Borrower's property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which
Borrowers are engaged. For purposes of this Section 6.4(e) "contingent
liabilities" shall be computed at the amount which, in light of all relevant
facts and circumstances, represents the amount that can reasonably be expected
to become an actual or matured liability.
(f) No event has occurred (i) since December 31, 1995 (to the
extent this representation and warranty is being made or is deemed to be made
prior to delivery of the first set of annual financial statements required to
be delivered after the Closing Date pursuant to Section 7.1(a) and (b)),
or (ii) since the date of the most recent annual financial statements
delivered to Banks pursuant to Section 7.1(a) and (b) (to the extent this
representation and warranty is made or is deemed to be made after delivery of
such financial statements), and no condition exists (as of each date on which
this representation and warranty is made or deemed to be made) which has had
or which could reasonably be expected to have a Material Adverse Effect.
SECTION 6.5. Litigation. Except for matters disclosed on
Schedule 5 attached hereto, there is no action, suit or proceeding pending
against, or to the knowledge of either Borrower, threatened against or
affecting TEL or any of its Subsidiaries before any Governmental Authority in
which there is a reasonable possibility of an adverse decision which could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.6. ERISA. Neither TEL nor any ERISA Affiliate maintains
or contributes to any Plan other than those disclosed to Administrative Agent
in writing. Other than TEL's Retirement Income Plan, neither TEL nor any
ERISA Affiliate maintains or has ever maintained or been obligated to
contribute to any Plan covered by Title IV of ERISA or subject to the funding
requirements of Section 412 of the Code or Section 302 of ERISA, or a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA. Each Plan
maintained by TEL or any ERISA Affiliate is in compliance in all material
respects with the applicable provisions of ERISA, the Code and any other
applicable Federal or state law, rule or regulation; all returns, reports and
notices required to be filed with any regulatory agency with respect to any
Plan have been filed timely; and neither TEL nor any ERISA Affiliate has
failed to make any contribution or pay any amount due or owing as required by
the terms of any Plan, except where the failure with respect to the foregoing
would not have a Material Adverse Effect. No Plan of TEL or any ERISA
Affiliate has been terminated under section 4041(c) of ERISA nor has any
"accumulated funding deficiency" (as defined in section 412(a) of the Code)
been incurred (without regard to any waiver granted under section 412 of the
Code), nor has any funding waiver from the Internal Revenue Service been
received or requested. There has been no ERISA Event or any event requiring
disclosure under section 4041(c)(3)(C), 4063(a) or 4043(b) of ERISA with
respect to any Plan or its related trust of TEL or any ERISA Affiliate since
the effective date of ERISA. The value of the assets of each Plan (other than
a multiemployer plan) of TEL and each ERISA Affiliate equaled or exceeded the
present value of the benefit liabilities, as defined in Title IV of ERISA, of
each such Plan as of the most recent valuation date using Plan actuarial
assumptions at such date. Neither TEL nor any ERISA Affiliate has withdrawn
from any multiemployer plan, nor has incurred or reasonably expects to incur
(A) any liability under Title IV of ERISA (other than premiums due under
section 4007 of ERISA to the PBGC, (B) any withdrawal liability (and no event
has occurred which with the giving of notice under section 4219 of ERISA would
result in such liability) under section 4201 of ERISA as a result of a
complete or partial withdrawal (within the meaning of section 4023 or 4205 of
ERISA) from a multiemployer plan, or (C) any liability under section 4062 of
ERISA to the PBGC or to a trustee appointed under section 4042 of ERISA.
There are no pending or, to the best of TEL's knowledge, threatened claims,
lawsuits, investigations or actions (other than routine claims for benefits in
the ordinary course) asserted or instituted against, and neither TEL nor any
ERISA Affiliate has knowledge of any threatened litigation or claims against,
the assets of any Plan or its related trust or against any fiduciary of a Plan
with respect to the operation of such Plan that could reasonably be expected
to result in liability of TEL or any ERISA Affiliate having a Material Adverse
Effect. There are no investigations or audits of any Plan by any Governmental
Authority currently pending and there have been no such investigations or
audits that have been concluded that resulted in any liability of TEL or any
ERISA Affiliate that has not been fully discharged. Each Plan that is
intended to be "qualified" within the meaning of section 401(a) of the Code
is, and has been during the period from its adoption to date, so qualified,
both as to form and operation and all necessary governmental approvals,
including a favorable determination as to the qualification under the Code of
such Plan and each amendment thereto, have been or will be timely obtained.
Neither TEL nor any ERISA Affiliate has engaged in any prohibited
transactions, within the meaning of section 406 of ERISA or section 4975 of
the Code, in connection with any Plan and there have been no breaches of any
of the duties imposed on "fiduciaries" (within the meaning of section 3(21) of
ERISA) with respect to any Plan which, in either case, could result in
liability of TEL or any of its Subsidiaries having a Material Adverse Effect.
Neither of TEL or any of its Subsidiaries nor any ERISA Affiliate maintains or
contributes to any Plan that provides a post-employment health benefit, other
than a benefit required under section 601 of ERISA, or maintains or
contributes to a Plan that provides health benefits that is not fully funded
except to the extent of unfunded health benefits which in any year could not
reasonably be expected to have a Material Adverse Effect. Neither TEL, any of
its Subsidiaries nor any ERISA Affiliate maintains, has established or has
ever participated in a multiple employer welfare benefit arrangement within
the meaning of section 3(40)(A) of ERISA.
SECTION 6.7. Taxes and Filing of Tax Returns. Schedule 6
contains a true and accurate description of all Taxes payable by TEL and its
Material Subsidiaries with respect to the exploration for, the production of
and the export or the sale of Hydrocarbons from the Colombian Assets under
applicable Tax Law in effect on the Closing Date. Except as disclosed to
Banks in writing, Borrowers have no reason to believe that there may be any
material adverse change in such Taxes. TEL and each of its Subsidiaries have
filed all material tax returns required to have been filed and have paid all
Taxes shown to be due and payable on such returns, including interest and
penalties, and all other Taxes which are payable by such party, to the extent
the same have become due and payable, other than Taxes with respect to which a
failure to pay could not reasonably be expected to have a Material Adverse
Effect. Neither Borrower knows of any proposed material Tax assessment
against either Borrower or any of its Material Subsidiaries, and all Tax
liabilities of each Borrower and the Material Subsidiaries are adequately
provided for. Except as disclosed in writing to Banks prior to the date
hereof, no Tax liability of TEL or any of its Subsidiaries has been asserted
by any Governmental Authority in excess of those already paid which assertion
is reasonably expected to be ultimately resolved in a manner adverse to TEL or
its Subsidiaries and which, if so resolved, could reasonably be expected to
have a Material Adverse Effect.
SECTION 6.8. Ownership of Properties Generally. TEL and each of its
Subsidiaries have good and valid fee simple or leasehold title to all material
properties and assets purported to be owned by them, including, without
limitation, all assets reflected in the balance sheets referred to in Section
6.4(a), (b) and (c) and all assets which are used by TEL and its
Subsidiaries in the operation of their respective businesses, and none of such
properties or assets is subject to any Lien or claim of any kind other than
Permitted Encumbrances.
SECTION 6.9. Colombian Mineral Properties. The License Agreements
grant to TCI all Mineral Interests necessary and appropriate for the
exploration, development, production and sale by TCI, for its own account, of
the Hydrocarbons described in the D&M Reserve Report and the Economic
Summaries, free and clear of all Liens or claims of any kind except Permitted
Encumbrances and those being contested in good faith by appropriate
proceedings as permitted in Section 7.5. All such Mineral Interests are
valid, subsisting, and in full force and effect, and all rentals, royalties,
Taxes and other amounts due and payable in respect thereof have been duly
paid. Without regard to any consent or non-consent provisions of any joint
operating agreement covering any of TCI's proved Mineral Interests, TCI's
share of (a) the costs for each proved Mineral Interest described in the D&M
Reserve Report and the Economic Summaries is not greater than the decimal
fraction set forth in the D&M Reserve Report and the Economic Summaries,
before and after payout, as the case may be, and described therein by the
respective designations "working interests", "WI", "gross working interest",
"GWI", or similar terms, and (b) production from, allocated to, or attributed
to each such proved Mineral Interest is not less than the decimal fraction set
forth in the D&M Reserve Report and the Economic Summaries, before and after
payout, as the case may be, and described therein by the designations net
revenue interest, NRI, or similar terms. The ▇▇▇▇▇ drilled in respect of the
proved producing Mineral Interests described in the D&M Reserve Report and the
Economic Summaries, (y) are, in the aggregate, capable of, and are presently,
producing Hydrocarbons in aggregate quantities substantially equivalent to or
in excess of the amounts projected for current periods in the D&M Report and
the Economic Summaries, and TCI is currently receiving payments for its share
of production, with no funds in respect of any thereof being presently held in
suspense, and (z) has been drilled and operated in material compliance with
all applicable Laws.
SECTION 6.10. Subsidiaries; Capitalization. As of the Closing Date,
TEL has no Subsidiaries other than those listed on Schedule 7. Except as
disclosed in writing to Banks prior to the date hereof, Schedule 7
accurately and completely sets forth as of the Closing Date (a) the
jurisdiction of incorporation or organization of each Subsidiary of TEL, (b)
the authorized, issued and outstanding Capital Stock of every class of TEC and
each Material Subsidiary, (c) the name of the record and beneficial owner of
the outstanding Capital Stock of TEC and each Material Subsidiary, and (d) the
authorized, issued and outstanding Capital Stock of every class of TEL (which
shall be as of a date two Domestic Business Days prior to the Closing Date).
All of the outstanding capital stock of each Borrower and each Material
Subsidiary has been validly issued, is fully paid, and is nonassessable.
Except as set forth on Schedule 7 hereto or as disclosed in writing to Banks
prior to the date hereof, there are no outstanding subscriptions, options,
warrants, calls, or rights (including preemptive rights) to acquire, and no
outstanding securities or instruments convertible into, capital stock of TEC
or any Material Subsidiary. Except as set forth on Schedule 7 hereto, there
are no shareholder agreements, voting trusts or similar agreements in effect
and binding on TEC or any Material Subsidiary or the Capital Stock of TEC or
any Material Subsidiary which governs or otherwise restricts the right to vote
such Capital Stock.
SECTION 6.11. Licenses, Permits, License Agreements and Joint
Operating Agreement. Each Borrower and each Material Subsidiary possess
such valid franchises, certificates of convenience and necessity, operating
rights, licenses, permits, consents, authorizations, exemptions and orders of
Governmental Authorities, as are necessary to carry on their respective
businesses as now conducted and as proposed to be conducted, except to the
extent a failure to obtain any such item could not reasonably be expected to
have a Material Adverse Effect. Without limiting the foregoing, each Borrower
hereby represents and warrants that (a) Borrowers have provided each Bank with
true and correct copies of each License Agreement and the Joint Operating
Agreement including all amendments, modifications and supplements thereto, (b)
neither TEL nor any of its Subsidiaries is in default in the performance or
observance of any obligation under any of the License Agreements or the Joint
Operating Agreement, (c) to the best knowledge of each Borrower, no Grantor is
in default in the performance or observance of any material obligation under
any License Agreement, (d) to the best knowledge of each Borrower, no party to
any License Agreement or the Joint Operating Agreement (other than TEL and its
Subsidiaries or the Grantor [in the case of a License Agreement]) is in
default in the performance or observance of any obligation under any of the
License Agreements or the Joint Operating Agreement to the extent such default
could reasonably be expected to have a Material Adverse Effect, (e) no
material right of TEL or any of its Subsidiaries or material obligation of any
other party to any of the License Agreements or the Joint Operating Agreement
has been waived, and (f) each of the License Agreements and the Joint
Operating Agreement constitute the valid, and binding agreement of the parties
thereto and are enforceable against each such party in accordance with their
terms in all material respects.
SECTION 6.12. Compliance with Law. The business and operations of
each Borrower and each Material Subsidiary have been and are being conducted
in accordance with all applicable Laws including the Foreign Corrupt Practices
Act other than violations of Laws which could not (either individually or
collectively) reasonably be expected to have a Material Adverse Effect.
SECTION 6.13. Full Disclosure. All information heretofore
furnished by either Borrower (or any other party in either Borrower's behalf)
to any Agent or any Bank for purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all such information hereafter
furnished by either Borrower or in either Borrower's behalf to any Agent or
any Bank will be, true, complete and accurate in every material respect or (to
the extent disclosed) based on reasonable estimates on the date as of which
such information is stated or certified. Borrowers have disclosed to Banks in
writing any and all facts (other than facts of general public knowledge) which
could reasonably be expected to have a Material Adverse Effect.
SECTION 6.14. Environmental Matters. Except for matters disclosed on
Schedule 8 hereto, no real or personal property owned or leased by TEL or
any Subsidiary of TEL (including, without limitation, TEL's and its
Subsidiaries' Mineral Interests) and no operations conducted thereon, and to
each Borrower's knowledge, no operations of any prior owner, lessee or
operator of any such properties, is or has been in violation of any
Environmental Law other than violations which neither individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
Except for matters disclosed on Schedule 8 hereto, neither TEL nor any of
its Subsidiaries, nor any such property or operation is the subject of any
existing, pending or, to each Borrower's knowledge, threatened Environmental
Complaint which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. All notices, permits, licenses,
and similar authorizations, required to be obtained or filed in connection
with the ownership or operation of each tract of real property and each item
of personal property owned, leased or operated by TEL or any of its
Subsidiaries, including, without limitation, notices, licenses, permits and
authorizations required in connection with any past or present treatment,
storage, disposal or release of Hazardous Substances into the environment have
been duly obtained or filed except to the extent the failure to obtain or file
such notices, licenses, permits and authorizations could not reasonably be
expected to have a Material Adverse Effect. All Hazardous Substances,
generated at each tract of real property and by each item of personal property
owned, leased or operated by TEL or any of its Subsidiaries have been
transported, treated, and disposed of only by carriers maintaining valid
permits under all applicable Environmental Laws except where a failure of such
carriers to maintain such permits could not reasonably be expected to have a
Material Adverse Effect. Except for matters disclosed on Schedule 8 hereto,
there has been no Hazardous Discharge on, to or from any real or personal
property owned, leased, or operated by TEL or any of its Subsidiaries which
was not in compliance with Environmental Laws other than Hazardous Discharges
which could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Except for matters disclosed on Schedule 8
hereto, neither Borrower nor any Subsidiary of either Borrower has any
contingent liability in connection with any Hazardous Discharge which could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.15. Burdensome Obligations. Neither Borrower nor any of the
Material Subsidiaries nor any of their respective properties is subject to any
Law or any pending or threatened change of Law or subject to any restriction
under its articles of association, certificate of incorporation, bylaws or
other corporate charter documents or under any agreement or instrument to
which either Borrower or any of the Material Subsidiaries is a party or by
which either Borrower or any of the Material Subsidiaries or any of their
respective properties may be subject or bound, which is so unusual or
burdensome as to be likely in the foreseeable future to have a Material
Adverse Effect. Without limiting the foregoing, neither TEL nor any of its
Subsidiaries is a party to or bound by any agreement or subject to any Law or
order of any Governmental Authority which prohibits or restricts in any way
the right of any Subsidiary of TEL to make Distributions to TEL or to TEC.
SECTION 6.16. Senior Indebtedness. The Obligations constitute "Senior
Indebtedness of the Guarantor," "Senior Indebtedness of the Issuer" and
"Senior Indebtedness of the Company" as each of such terms is defined in the
1997 Notes Indenture and the 9x% Notes Indenture.
SECTION 6.17. Fiscal Year. TEL's Fiscal Year and the Fiscal Year of
each of TEL's Subsidiaries is January 1 through December 31.
SECTION 6.18. No Default. Neither a Default nor an Event of Default
has occurred or will exist after giving effect to the transactions
contemplated by this Agreement.
SECTION 6.19. Government Regulation. Neither TEL nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act (as any of the
preceding acts have been amended), the Investment Company Act of 1940 or any
other Law which regulates the incurring by Borrowers of Debt, including, but
not limited to Laws relating to common contract carriers or the sale of
electricity, gas, stream, water or other public utility services.
SECTION 6.20. Insider. Neither TEL nor any of its Subsidiaries is,
and no Person having "control" (as that term is defined in 12 U.S.C. Section
375(b) or regulations promulgated thereunder) of TEL or any Subsidiary of TEL
is an "executive officer", "director" or "shareholder" of any Bank or any bank
holding company of which any Bank is a Subsidiary or of any Subsidiary of such
bank holding company.
SECTION 6.21. Outstanding Debt and Advance Payment Contract
Liabilities. Schedule 9 hereto sets forth an accurate and complete
description of all Debt and Advance Payment Contract Liabilities of TEL and
its Subsidiaries outstanding on the date hereof other than Debt owed by
Subsidiaries of TEL which are not Material Subsidiaries to either Borrower or
to Subsidiaries of TEL (other than TEC).
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrowers agree that, so long as any Bank has any commitment to lend or
participate in Letter of Credit Exposure hereunder or any amount payable
under any Note remains unpaid or any Letter of Credit remains outstanding:
SECTION 7.1. Information. Borrowers will deliver, or cause to be
delivered, to each Bank:
(a) as soon as available and in any event within one hundred
five (105) days after the end of each Fiscal Year, consolidated and
consolidating balance sheets of TEL as of the end of such Fiscal Year and the
related consolidated and consolidating statements of operations and cash flows
for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all reported by such Person in
accordance with GAAP and audited (in the case of the consolidated financial
statements) by a firm of independent public accountants of nationally
recognized standing and acceptable to Administrative Agent;
(b) as soon as available, and in any event within one hundred
five (105) days after the end of each Fiscal Year, consolidated balance sheets
of each of TEC, TIOC and TCI and their respective Consolidated Subsidiaries as
of the end of such Fiscal Year and the related consolidated statements of
operations and cash flows for such Fiscal Year, setting forth, in each case,
in comparative form the figures for the previous Fiscal Year, all to be
derived from the accounting records of TEL which shall be prepared in
accordance with GAAP (subject to the absence of footnotes);
(c) (i) as soon as available and in any event within sixty (60)
days after the end of each of the first three (3) Fiscal Quarters of each
Fiscal Year, consolidated (and, in the case of TEL, consolidating) balance
sheets of TEL and TEC, and their respective Consolidated Subsidiaries as of
the end of such Fiscal Quarter and the related consolidated (and, in the case
of TEL, consolidating) statements of operations for such quarter and for the
portion of each such Person's fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of each such Person's previous Fiscal Year;
(d) simultaneously with the delivery of each financial statement
referred to in Sections 7.1(a), (b) and (c), a certificate of the
Financial Officer of TEL in the form of Exhibit H attached hereto, (i)
setting forth in reasonable detail the calculations required to establish
whether Borrowers were in compliance with the requirements of Section 8.1 and
8.13 on the date of such financial statements, (ii) stating whether there
exists on the date of such certificate any Default and, if any Default then
exists, setting forth the details thereof and the action which Borrowers are
taking or propose to take with respect thereto, and (iii) stating whether or
not such financial statements were prepared in accordance with GAAP and on a
basis consistent with all prior financial statements for the Person covered
thereby previously delivered to Banks, and whether or not such financial
statements fairly reflect the results of operations and financial condition of
such Persons as of the date of the delivery of such financial statements;
(e) as soon as available, and in any event, within thirty (30)
days after the end of each calendar month commencing with the month in which
the Conversion Date occurs, a certificate of the Financial Officer of TEL in
form and substance reasonably acceptable to Required Banks (i) setting forth
in reasonable detail a calculation of TEL's Consolidated EBITDAD for such
month and for the portion of the Fiscal Year then ended, and (ii) setting
forth all Debt and Advance Payment Contract Liabilities of TEL and its
Subsidiaries as of the end of such month;
(f) promptly upon the mailing thereof to the stockholders of TEL
and its Subsidiaries generally, copies of all financial statements, reports
and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all final
registration statements post effective amendments thereto and annual,
quarterly or special reports which TEL or any of its Subsidiaries shall file
with the Securities and Exchange Commission; provided, that Borrowers
must deliver, or cause to be delivered, any annual reports which TEL or any of
its Subsidiaries shall have filed with the Securities and Exchange Commission,
within one hundred five (105) days after the end of each Fiscal Year of TEL,
and any quarterly reports which TEL or any of its Subsidiaries shall have
filed with the Securities and Exchange Commission, within sixty (60) days
after the end of each of the first three (3) Fiscal Quarters of each Fiscal
Year of TEL;
(h) promptly upon receipt of same, any notice or other
information received by TEL or any Subsidiary of TEL indicating any potential,
actual or alleged (i) non-compliance with or violation of the requirements of
any Environmental Law which could result in liability to either Borrower or
any Material Subsidiary for fines, clean up or any other remediation
obligations or any other liability in excess of $2,000,000 outstanding at any
time considered together with all other such liabilities in the aggregate;
(ii) any Hazardous Discharge which would impose on either Borrower or any
Material Subsidiary of TEL a duty to report to a Governmental Authority or to
pay cleanup costs or to take remedial action under any Environmental Law which
could result in liability to either Borrower or any Material Subsidiary of TEL
for fines, clean up and other remediation obligations or any other liability
in excess of $2,000,000 outstanding at any time considered together with all
other such liabilities in the aggregate; or (iii) the existence of any Lien
arising under any Environmental Law securing any obligation to pay fines,
clean up or other remediation costs or any other liability in excess of
$2,000,000 outstanding at any time considered together with all other such
liabilities in the aggregate. Without limiting the foregoing, Borrowers shall
provide to Banks promptly upon receipt of same copies of all environmental
consultants or engineers reports received by TEL or any Subsidiary of TEL
which would render the representation and warranty contained in Section 6.14
untrue or inaccurate in any respect;
(i) in the event any notification is provided by either Borrower
to any Bank or Administrative Agent pursuant to Section 7.1(h) hereof or any
Agent or any Bank otherwise learns of any event or condition under which any
such notice would be required, then, upon request of Required Banks, Borrowers
shall deliver to Administrative Agent and each Bank such information regarding
such event, condition or circumstance as Administrative Agent or Required
Banks shall reasonably require;
(j) as soon as possible, but in all events within two Domestic
Business Days after any Authorized Officer becoming aware of the occurrence of
any Default, a certificate of an Authorized Officer setting forth the details
thereof and the action which Borrowers are taking or propose to take with
respect thereto;
(k) as soon as possible, but in all events within two Domestic
Business Days after any Authorized Officer become aware of same, notice of the
occurrence of any event or the existence of any condition which is reasonably
expected to have a Material Adverse Effect including, without limitation,
notice of the commencement or threat of any action, suit or proceeding against
TEL or any of its Subsidiaries in which there is a reasonable possibility of
an adverse decision which could reasonably be expected to have a Material
Adverse Effect;
(l) as soon as available and in any event no later than March 31
of each of TEL's Fiscal Years, projections of TEL's and its Subsidiaries'
financial condition and results of operations for such Fiscal Year and each of
the next two (2) succeeding Fiscal Years including forecasted consolidated
balance sheets, statements of operations and cash flow all prepared in a
manner consistent with such Person's historical financial statements, together
with appropriate supporting details and a statement of underlying assumptions
in a form reasonably acceptable to Administrative Agent; and
(m) from time to time such additional information regarding the
financial position or business of TEL and its Subsidiaries as Administrative
Agent, at the request of any Bank, may reasonably request.
SECTION 7.2. Maintenance of Existence. Each Borrower shall, and shall
cause each Material Subsidiary to, at all times (a) maintain its corporate,
partnership or limited liability company existence in its jurisdiction of
incorporation or organization except to the extent any Subsidiary ceases to be
in existence as a result of a merger or consolidation expressly permitted
pursuant to Section 8.4, and (b) maintain its good standing and
qualification to transact business in all jurisdictions where the failure to
maintain good standing or qualification to transact business could reasonably
be expected to have a Material Adverse Effect.
SECTION 7.3. Right of Inspection. Each Borrower will permit and
will cause each Subsidiary of TEL to permit any officer, employee or agent of
Administrative Agent or of any Banks to visit and inspect any of the assets of
each Borrower and their Subsidiaries, examine each Borrower's and their
Subsidiaries' books of record and accounts, take copies and extracts
therefrom, and discuss the affairs, finances and accounts of TEL and its
Subsidiaries with TEL's and its Subsidiaries' officers, accountants and
auditors, all at such reasonable times as Administrative Agent or any of Banks
may desire, all at the expense of Borrowers; provided, that (a) neither
Administrative Agent nor any Bank will require either Borrower or any of their
Subsidiaries to incur any unreasonable expense as a result of the exercise by
Administrative Agent or any Bank of its rights pursuant to this Section 7.3,
and (b) Borrowers shall not be required to permit officers, employees and
agents of Administrative Agent or any Bank to physically visit and inspect
fixed assets to the extent such visitation or inspection would violate
applicable Law or contractual requirements binding upon TEL or any of its
Subsidiaries.
SECTION 7.4. Maintenance of Insurance. Each Borrower will, and
will cause each Material Subsidiary to (and will use its best efforts to cause
all operators of Mineral Interests owned by TEL or any of its Subsidiaries) at
all times maintain or cause to be maintained (a) all insurance required under
the License Agreements, the Joint Operating Agreement and all other
contractual requirements applicable to either Borrower or any Material
Subsidiary, and (b) to the extent not regulated by contractual requirements,
such other insurance as is customarily carried by businesses similarly
situated.
SECTION 7.5. Payment of Taxes and Claims. Each Borrower will, and
will cause each Material Subsidiary to, pay (a) all Taxes with respect to any
of its assets, franchises, business, income or profits before any material
penalty or interest accrues thereon and (b) all material claims (including,
without limitation, claims for labor, services, materials and supplies) for
sums which have become due and payable and which by law have or might become a
Lien (other than a Permitted Encumbrance) on any of its assets; provided,
however, no payment of Taxes or claims shall be required if (i) the amount,
applicability or validity thereof is currently being contested in good faith
by appropriate action promptly initiated and diligently conducted in
accordance with good business practices and no material part of the property
or assets of either Borrowers or any of the Material Subsidiaries are subject
to levy or execution, (ii) TEL shall have set aside on its books adequate
reserves with respect thereto, and (iii) Administrative Agent has been
notified of such circumstances, in detail reasonably satisfactory to
Administrative Agent.
SECTION 7.6. Compliance with Laws and Documents. Each Borrower
will and will cause each of the Material Subsidiaries to comply with all Laws,
its respective articles of association, certificate of incorporation, bylaws
and other charter documents and all agreements to which either Borrower or any
of the Material Subsidiaries is a party, if a violation, alone or when
combined with all other such violations, could reasonably be expected to have
a Material Adverse Effect.
SECTION 7.7. Operation of Properties and Equipment. Each Borrower
will, and will cause each of the Material Subsidiaries to, maintain, develop
and operate its respective Mineral Interests in a manner consistent with good
oil field practices and all applicable contractual requirements, and enforce
the observance and compliance with all of the terms and provisions, express or
implied, of all contracts and agreements applicable to or relating to their
respective Mineral Interests or the production and sale of Hydrocarbons and
accompanying elements therefrom in circumstances where it is not the operator
(or if it is the operator, then it shall observe and comply with such terms
and provisions), except to the extent a failure to so comply could not
reasonably be expected to have a Material Adverse Effect.
SECTION 7.8. Environmental Law Compliance. Except to the extent a
failure to comply could not reasonably be expected to have a Material Adverse
Effect, each Borrower will, and will cause each Material Subsidiary to, comply
with all Environmental Laws, including, without limitation, (a) all licensing,
permitting, notification and similar requirements of Environmental Laws, and
(b) all provisions of all Environmental Laws regarding Hazardous Discharges.
Each Borrower will, and will cause each Material Subsidiary to, promptly pay
and discharge when due all legal debts, claims, liabilities and obligations
with respect to any clean-up or remediation measures necessary to comply with
Environmental Laws; provided, however, Borrowers will not be required to pay
and discharge, or cause Material Subsidiaries to pay and discharge, such
debts, claims, liabilities and obligations to the extent (i) the amount,
applicability or validity thereof is currently being contested in good faith
by appropriate action promptly initiated and diligently conducted in
accordance with good business practices and no material part of the property
or assets of either Borrowers or any of the Material Subsidiaries are subject
to levy or execution, (ii) TEL shall have set aside on its books adequate
reserves with respect thereto, and (iii) Administrative Agent has been
notified of such circumstances, in detail reasonably satisfactory to
Administrative Agent.
SECTION 7.9. ERISA Reporting Requirements. Each Borrower shall
furnish or cause to be furnished to Administrative Agent:
(a) Promptly and in any event (i) within thirty (30) days after
either Borrower or any ERISA Affiliate knows or has reason to know that any
ERISA Event described in clause (a) of the definition of ERISA Event or any
event described in section 4063(a) of ERISA with respect to any Plan of TEL or
any ERISA Affiliate has occurred, and (ii) within ten (10) days after TEL or
any ERISA Affiliate knows or has reason to know that any other ERISA Event
with respect to any Plan of TEL or any ERISA Affiliate has occurred or a
request for minimum funding waiver under Section 412 of the Code with respect
to any Plan of TEL or any ERISA Affiliate has been made, a written notice
describing such event and describing what action is being taken or is proposed
to be taken with respect thereto, together with a copy of any notice of event
that is given to the PBGC;
(b) Promptly and in any event within two (2) Domestic Business
Days after receipt thereof by TEL or any ERISA Affiliate from the PBGC, copies
of each notice received by TEL or any ERISA Affiliate of the PBGC's intention
to terminate any Plan or to have a trustee appointed to administer any Plan;
(c) Promptly and in any event (i) within thirty (30) days after
TEL or any ERISA Affiliate receives notice from any regulatory agency of the
commencement of an audit, investigation or similar proceeding with respect to
a Plan if the results of such audit, investigation or proceeding could
reasonably be expected to have a Material Adverse Effect, (ii) within ten (10)
days after TEL or any ERISA Affiliate contacts the Internal Revenue Service
for the purpose of participation in a closing agreement or any voluntary
resolution program with respect to a Plan, and (iii) within ten (10) days
after any ERISA Affiliate knows or has reason to know that any event with
respect to any Plan of TEL or any ERISA Affiliate has occurred that could
reasonably be expected to have a Material Adverse Effect;
(d) Promptly and in any event within thirty (30) days after the
receipt by Borrowers of a request therefor by a Bank, copies of any annual and
other report (including Schedule B thereto) with respect to a Plan filed by
TEL or any ERISA Affiliate with the United States Department of Labor, the
Internal Revenue Service or the PBGC;
(e) Promptly, and in any event within ten (10) Domestic Business
Days after receipt thereof, a copy of any correspondence TEL or any ERISA
Affiliate receives from the Plan Sponsor (as defined in section 4001(a)(10) of
ERISA) of any Plan asserting withdrawal liability pursuant to section 4219 or
4202 of ERISA upon TEL or any ERISA Affiliate and a statement from a Financial
Officer of TEL or such ERISA Affiliate setting forth details as to the events
giving rise to such withdrawal liability and the action which TEL or such
ERISA Affiliate is taking or proposes to take with respect thereto;
(f) Notification within three (3) Domestic Business Days after
TEL or any ERISA Affiliate knows or has reason to know that TEL or any such
ERISA Affiliate has or intends to file a notice of intent to terminate any
Plan under a distress termination within the meaning of section 4041(c) of
ERISA and a copy of such notice;
(g) Notification within thirty (30) days of the effective date
thereof of any material increases in the benefits of any existing Plan which
is not a multiemployer plan (as defined in section 4001(a)(3) of ERISA), or
the establishment of any material new Plans, or the commencement of
contributions to any material Plan to which TEL or any ERISA Affiliate was not
previously contributing; and
(h) Promptly after receipt of written notice of commencement
thereof, notice of all (i) claims made by participants or beneficiaries with
respect to any Plan, and (ii) actions, suits and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting TEL or any ERISA Affiliate
with respect to any Plan, except, in the case of both clauses (i) and (ii)
hereof, those which, individually or in the aggregate, if adversely determined
could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.10. Additional Documents. Each Borrower shall cure promptly
any defects in the creation and issuance of each Note , and the execution and
delivery of this Agreement and the other Loan Papers and, at Borrowers'
expense, each Borrower shall promptly and duly execute and deliver to each
Bank, upon reasonable request, all such other and further documents,
agreements and instruments in compliance with or accomplishment of the
covenants and agreements of each Borrower in this Agreement and the other Loan
Papers as Administrative Agent or Required Banks may deem necessary or
appropriate.
ARTICLE VIII
NEGATIVE COVENANTS
Borrowers agree that, so long as any Bank has any commitment to lend or
participate in Letter of Credit Exposure hereunder or any amount payable
under any Note remains unpaid or any Letter of Credit remains outstanding:
SECTION 8.1. Outstanding Debt and Advance Payment Contract
Liabilities. Neither Borrower will, nor will either Borrower permit any of
its Subsidiaries to incur, become or remain liable for any Debt or for Advance
Payment Contract Liabilities which are prohibited pursuant to any subsection
of this Section 8.1:
(a) During the period from and including the Closing Date to but
excluding the Conversion Date, neither Borrower will, nor will either Borrower
permit any of its Subsidiaries to, incur, become or remain liable for any Debt
or Advance Payment Contract Liabilities which causes the sum of (i) the
aggregate total Debt of TEL and its Subsidiaries and (ii) the aggregate total
Advance Payment Contract Liabilities of TEL and its Subsidiaries, in each case
on a consolidated basis, to exceed the Debt Limit.
(b) During the period from and including the Conversion Date to but
excluding the Production Milestone Date (the "Interim Leverage Test Period")
neither Borrower will, nor will either Borrower permit any of its Subsidiaries
to, incur, become or remain liable for any Debt or Advance Payment Contract
Liabilities which causes the sum of (i) the aggregate total Debt of TEL and
its Subsidiaries, and (ii) the aggregate total Advance Payment Contract
Liabilities of TEL and its Subsidiaries, in each case on a consolidated basis,
to exceed the lesser of (A) the Debt Limit, or (B) an amount which would cause
the Interim Leverage Ratio to exceed 6.25 to 1. As used herein, "Interim
Leverage Ratio" means, as of any date (a "Measurement Date"), the ratio of
(i) the sum of (A) the total Debt of TEL and its Subsidiaries, and (B) the
aggregate total Advance Payment Contract Liabilities of TEL and its
Subsidiaries, in each case on a consolidated basis, as of such Measurement
Date, to (ii) (A) TEL's Consolidated EBITDAD for the period of four Fiscal
Quarters most recently ended as of such Measurement Date (provided that four
complete Fiscal Quarters have elapsed since the first day of the month in
which the Conversion Date occurs), or (B) TEL's Annualized Consolidated
EBITDAD for the period commencing on the first day of the first Fiscal Quarter
commencing on or after the first day of the month in which the Conversion Date
occurs and ending on the last day of the Fiscal Quarter most recently ended as
of such Measurement Date (provided that at least one, but less than four,
complete Fiscal Quarters have elapsed since the first day of the month in
which the Conversion Date occurs), or (C) TEL's Annualized Consolidated
EBITDAD for the period commencing on the first day of the month in which the
Conversion Date occurs and ending on the last day of the month most recently
ended as of such Measurement Date (provided that a complete Fiscal Quarter has
not elapsed since the first day of the month in which the Conversion Date
occurs).
(c) During the period from and including the Production Milestone
Date to the Termination Date (the "Final Leverage Test Period") neither
Borrower will, nor will either Borrower permit any of its Subsidiaries to,
incur, become or remain liable for any Debt or Advance Payment Contract
Liabilities which causes the sum of (i) the aggregate total Debt of TEL and
its Subsidiaries, and (ii) the aggregate total Advance Payment Contract
Liabilities of TEL and its Subsidiaries, in each case on a consolidated basis,
to exceed the lesser of (A) $700,000,000, or (B) the Final Leverage Ratio to
exceed 4.0 to 1 as of any date during the Final Leverage Test Period. As used
herein, "Final Leverage Ratio" means, as of any Measurement Date, the ratio
of (i) the sum of (A) the total Debt of TEL and its Subsidiaries, and (B) the
aggregate total Advance Payment Contract Liabilities of TEL and its
Subsidiaries, in each case on a consolidated basis, as of such Measurement
Date, to (ii) (A) TEL's Consolidated EBITDAD for the period of four Fiscal
Quarters most recently ended as of such Measurement Date (provided that four
complete Fiscal Quarters have elapsed since the first day of the month in
which the Production Milestone Date occurs), or (B) TEL's Annualized
Consolidated EBITDAD for the period commencing on the first day of the first
Fiscal Quarter commencing on or after the first day of the month in which the
Production Milestone Date occurs and ending on the last day of the Fiscal
Quarter most recently ended as of such Measurement Date (provided that at
least one, but less than four, complete Fiscal Quarters have elapsed since the
first day of the month in which the Production Milestone Date occurs), or (C)
TEL's Annualized Consolidated EBITDAD for the period commencing on the first
day of the month in which the Production Milestone Date occurs and ending on
the last day of the month most recently ended as of such Measurement Date
(provided that a complete Fiscal Quarter has not elapsed since the first day
of the month in which the Production Milestone Date occurs).
(d) Neither Borrower will permit any Subsidiary of TEC to incur,
become or remain liable for any Debt other than (i) Permitted ECA Debt, (ii)
Debt under Hedge Transactions provided that the Net Hedge Transaction Exposure
for all Hedge Transactions to which Subsidiaries of TEC are parties shall not
exceed $5,000,000 at any time, (iii) other Debt not to exceed $10,000,000
outstanding at any time in the aggregate, and (iv) Debt owed to either
Borrower or any of their other Subsidiaries. In the event that any Subsidiary
of TEC on the Closing Date ceases to be a Subsidiary of TEC subsequent to the
Closing Date, but continues to be a Subsidiary of TEL, such Subsidiary will be
deemed to continue to be a Subsidiary of TEC for purposes of this Section
8.1(d) and Section 8.1(e).
(e) Neither Borrower will permit Subsidiaries of TEL, other than TEC
and its Subsidiaries, to incur, become or remain liable for any Debt other
than (i) the Obligations, (ii) Debt outstanding on the Closing Date and
described on Schedule 9 hereto, (iii) other Debt not to exceed $10,000,000
outstanding at any time in the aggregate, and (iv) subject to clause (f)
below, Debt of TEL or any of its Subsidiaries owed to TEL or any other of its
Subsidiaries. In the event that any Subsidiary of TEL on the Closing Date
which is not a Subsidiary of TEC on the Closing Date, becomes a Subsidiary of
TEC subsequent to the Closing Date, such Subsidiary will not be deemed a
Subsidiary of TEC for purposes of this Section 8.1(e) or Section 8.1(d).
Nothing in this Section 8.1(e) or Section 8.1(d) will be deemed to permit
the transfer of ownership of an Subsidiary prohibited by other provisions of
this Agreement.
(f) Neither Borrower will incur, become or remain liable for any Debt
to any Subsidiary of either Borrower unless, prior to the incurrence of such
Debt, such Subsidiary shall execute and deliver to Administrative Agent a
Subordination Agreement. Neither Borrower will incur, become or remain liable
for Advance Payment Contract Liabilities owed to any Subsidiary of TEL.
(g) From and after the Closing Date, neither Borrower will incur or
become liable for any Debt (other than the Obligations), or permit any
Subsidiary of either Borrower to incur or become liable for any Debt which
requires any mandatory payment, prepayment, retirement, redemption, defeasance
or repurchase of principal of such Debt to be made at any time prior to the
180th day following the Termination Date other than (i) Refinancing Debt, (ii)
subject to clause (f) above, Debt of TEL or any of its Subsidiaries owed to
TEL or any other of its Subsidiaries, (iii) Permitted ECA Debt, and (iv) in
addition to the Debt permitted in clauses (i), (ii) and (iii) preceding, Debt
in a principal amount outstanding at any time not exceeding $10,000,000.
SECTION 8.2. Restricted Payments. Neither Borrower will, nor will
either Borrower permit any of its Subsidiaries to, make any Restricted Payment
or enter into any agreement which obligates any such Persons to make any such
Restricted Payment; provided, that so long as no Default or Event of Default
has occurred which is continuing or will result therefrom, (a) TEL may pay
dividends on the TEL Preferred Stock in an amount not to exceed $1,000,000 in
any Fiscal Year, (b) TEL may repurchase shares of its common stock from
individual shareholders holding less than 100 shares for an aggregate
consideration not exceeding $25,000 in any Fiscal Year, and (c) subject to
Section 8.1 above, TEL and its Subsidiaries may purchase, repurchase,
redeem, retire or defease any Debt with respect to which TEL or any of its
Subsidiaries is the obligor within eighteen (18) months of the scheduled
maturity thereof (i) with proceeds of Debt securities (other than the
Obligations) issued to Persons other than TEL and its Subsidiaries after the
Closing Date or with proceeds of equity securities issued to Persons other
than TEL and its Subsidiaries after the Closing Date (such Restricted Payments
to be made substantially simultaneously with the receipt of such proceeds),
and (ii) with proceeds of the Loan and from other available cash; provided,
that the aggregate amount of all Restricted Payments made pursuant to this
clause (c) (ii) shall not exceed the Restricted Payment Limit. As used
herein, "Restricted Payment Limit" means (w) $50,000,000 minus (x) the
aggregate amount of the Restricted Payments made pursuant to clause (ii) of
Section 8.2(c) on or after the Closing Date, (y) minus $9,005,000 in respect
of repurchases of 1997 Notes prior to the Closing Date, plus (z) net proceeds
to TEL and its Subsidiaries of Debt and equity securities (other than the
Obligations) issued to Persons other than TEL and its Subsidiaries after the
Closing Date and not utilized to make Restricted Payments pursuant to clause
(i) of Section 8.2(c); provided, that (i) in no event shall this clause (z)
operate to increase the Restricted Payment Limit to an amount greater than
$50,000,000 at any time, and (ii) proceeds of any issue of Debt or equity
securities in excess of the amount necessary to replenish the Restricted
Payment Limit to $50,000,000 shall not be carried forward and utilized to
replenish the Restricted Payment Limit at any date subsequent to the date of
receipt of such proceeds.
SECTION 8.3. Negative Pledge. Neither Borrower will, nor will
either Borrower permit any of its Subsidiaries to, create, assume or suffer to
exist any Lien on any asset of TEL or any of its Subsidiaries (including,
without limitation, the Capital Stock of any Subsidiary of TEL) other than
Permitted Encumbrances. Neither Borrower will, nor will either Borrower
permit any of its Subsidiaries to, enter into or become bound by any
agreement, understanding or arrangement (other than this Agreement) which
limits, restricts or impairs in any way the right of TEL or any of its
Subsidiaries to create, assume or suffer to exist any Lien on any of TEL's or
any of its Subsidiaries' assets in favor of Administrative Agent (or any
successor Administrative Agent) for the benefit of Banks.
SECTION 8.4. Consolidations and Mergers. Neither Borrower will, nor
will either Borrower permit any of its Subsidiaries to, consolidate or merge
with or into any other Person; provided, that so long as no Default or Event
of Default exists or will result (a) TEL may merge or consolidate with another
Person so long as TEL is the surviving corporation, (b) subject to Section
9.1(n) any wholly owned Subsidiary of TEL may merge or consolidate with any
other Person so long as a wholly owned Subsidiary of TEL is the surviving
corporation, (c) subject to Section 9.1(n) any Subsidiary which is not a
wholly owned Subsidiary of TEL may merge with any other Person so long as such
Subsidiary is the surviving corporation and continues to be a Subsidiary of
TEL after giving effect thereto, and (d) any Subsidiary of TEL which is not a
Material Subsidiary may merge or consolidate with any other Person in a
transaction in which a Subsidiary of TEL is not the survivor to the extent a
sale of all of the assets of such Subsidiary would be permitted under Section
8.5, and in that event, such merger or consolidation will be considered a
sale of assets for purposes of the relevant provisions of Section 8.5. The
survivor of any merger or consolidation involving any Material Subsidiary
shall be a "Material Subsidiary" for all purposes of this Agreement and the
other Loan Papers.
SECTION 8.5. Asset Dispositions. Neither Borrower will, nor will
either Borrower permit any of its Subsidiaries to sell, lease, transfer,
abandon or otherwise dispose of any asset; provided that TEL and its
Subsidiaries may sell Hydrocarbons produced in the ordinary course of business
and not pursuant to Advance Payment Contracts, and, so long as no Default or
Event of Default has occurred which is continuing or would result therefrom:
(a) TEL and its Subsidiaries may sell Material Assets, including,
without limitation (i) the sale of Hydrocarbons pursuant to Advance Payment
Contracts, and (ii) the sale of Mineral Interests comprising a part of the
Material Assets which do not constitute proved reserves pursuant to farm out
or similar agreements; provided that (A) the aggregate value of all Material
Assets sold or disposed of pursuant to this clause (a) during the period
commencing on the Closing Date and continuing until this Agreement is
terminated and the Obligations have been paid in full shall not exceed
$50,000,000, (B) Borrowers shall provide Banks not less than fifteen (15) days
advance notice of the incurrence by TEL or any of its Subsidiaries of Advance
Payment Contract Liabilities and Required Banks shall have the right, upon
five (5) days advance notice to Borrowers, to reduce the Total Commitment (and
the Commitment of each Bank ratably) by an amount equal to the amount of all
Advance Payments to TEL or any of its Subsidiaries resulting in such Advance
Payment Contract Liabilities, and (C) all proceeds of asset sales completed
pursuant to this clause (a) shall be reinvested in the exploration,
development and production of the Material Assets within one hundred twenty
(120) days following receipt of proceeds of such asset sales (for purposes of
this Section 8.5(a) only, (i) Material Assets shall not include
Transportation Assets), and (ii) TEL and its Subsidiaries will be deemed to
have sold Hydrocarbons with respect to which they have received Advance
Payments on the date such Advance Payments are paid by the purchaser under the
applicable Advance Payment Contract;
(b) TEL and its Subsidiaries may sell Transportation Assets provided
that the proceeds of the sale of such Transportation Assets shall be
reinvested in the exploration, development and production of Material Assets
within three hundred sixty (360) days following receipt of proceeds of the
sale of such Transportation Assets and any portion of such proceeds not so
reinvested within one hundred eighty (180) days shall (on such 180th day) be
placed in escrow with Administrative Agent pursuant to an escrow agreement in
form and substance acceptable to Administrative Agent and shall be released
from escrow only for reinvestment in such Material Assets or to permanently
reduce the Obligations;
(c) TEL and its Subsidiaries may sell Mineral Interests (without
regard to the reinvestment of the proceeds thereof) pursuant to farmout or
similar agreements; provided that such Mineral Interests do not constitute (i)
material proved reserves, or (ii) Material Assets;
(d) TEL and its Subsidiaries may sell assets which do not constitute
Material Assets, Transportation Assets or farmouts of unproved or immaterial
proved reserves not constituting Material Assets, and without regard to the
reinvestment of the proceeds thereof; provided, that the aggregate value of
all assets sold pursuant to this clause (d) during the period commencing on
the Closing Date and continuing until this Agreement is terminated and the
Obligations have been paid in full shall not exceed $25,000,000, and any
portion of such proceeds in excess of $15,000,000 shall be reinvested in
Material Assets within one hundred eighty (180) days following TEL's and its
Subsidiaries receipt thereof; and
(e) Subsidiaries of TEL (other than TEC and Material Subsidiaries)
may sell, transfer, assign or convey assets to either Borrower and to other
Subsidiaries of TEL.
SECTION 8.6. Amendments to Material Documents. Neither Borrower will,
nor will either Borrower permit any of its Subsidiaries to enter into or
permit any modification or amendment of, or waive any material right or
obligation of any Person under (a) its articles of association, certificate of
incorporation, bylaws, partnership agreement, regulations or other
organizational documents other than amendments, modifications and waivers
which could not reasonably be expected to have a Material Adverse Effect, (b)
the 1997 Notes Indenture or the 9x Notes Indenture if the effect of any such
modification, amendment or waiver (i) is to alter or amend in any way the
subordination provisions thereof or definitions of defined terms utilized in
such subordination provisions or is otherwise adverse to the rights of holders
of "Senior Indebtedness of the Issuer," "Senior Indebtedness of the Company",
or "Senior Indebtedness of Guarantor" thereunder, (ii) is to accelerate the
maturity of the 1997 Notes or the 9x% Notes or the date on which any payment
is due thereunder, (iii) is to increase the interest rate applicable to the
1997 Notes or the 9x% Notes, or (iv) is to add representations, warranties,
covenants or events of default or otherwise cause the 1997 Notes Indenture or
the 9x% Notes Indenture to be more restrictive or burdensome to TEL or any of
its Subsidiaries, (c) the Existing Advance Payment Contract, (d) the License
Agreements, or (e) the Joint Operating Agreement (other than, in the case of
clauses (d) and (e) hereof, modifications, amendments and waivers which have
no material adverse effect on the rights, interests or obligations [economic
or otherwise] of TEL and its Subsidiaries arising under such agreements).
SECTION 8.7. Use of Proceeds. Neither Borrower will, nor will
either Borrower permit any of its Subsidiaries to use the proceeds of
Borrowings for any purpose other than (a) working capital, (b) to make
Permitted Investments, (c) to make capital expenditures, and (d) general
corporate purposes. None of such proceeds (including, without limitation,
proceeds of Letters of Credit issued hereunder) will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock, and none of such proceeds will be
used in violation of applicable Law (including, without limitation, the Margin
Regulations). Without limiting the foregoing, no Letters of Credit will be
issued hereunder for the purpose of providing credit enhancement with respect
to any Debt or equity security of TEL or any of its Subsidiaries or Affiliates
or to secure interest rate, commodity, currency or other swaps, caps, collars,
futures contracts or similar hedging arrangements, other than for Hedge
Transactions entered into with Banks and their Affiliates.
SECTION 8.8. Investments. Neither Borrower will, nor will either
Borrower permit any of its Subsidiaries to directly or indirectly, make any
Investment other than Permitted Investments.
SECTION 8.9. Transactions with Affiliates. Neither Borrower will, nor
will either Borrower permit any of its Subsidiaries, to engage in any
transaction with an Affiliate unless such transaction is entered into in the
ordinary course of business and is as favorable to Borrowers or such
Subsidiary as could be obtained in an arm's length transaction with an
unaffiliated Person in accordance with prevailing industry customs and
practices.
SECTION 8.10. ERISA. Neither Borrower will, nor will either Borrower
permit any of its Subsidiaries to take any action or fail to take any action
which would result in a violation of ERISA, the Code or other laws applicable
to the Plans maintained or contributed to by TEL or any ERISA Affiliate which
violation would have a Material Adverse Effect. Without the prior written
consent of Required Banks, neither Borrower will, nor will either Borrower nor
any ERISA Affiliate of TEL modify the term of, or the funding obligations or
contribution requirements under any existing Plan, establish a new Plan, or
become obligated or incur any liability under a Plan that is not maintained or
contributed to by TEL or any ERISA Affiliate as of the Closing Date which
could, in any case, reasonably result in liability of TEL having a Material
Adverse Effect.
SECTION 8.11. Fiscal Year. Neither Borrower will, nor will either
Borrower permit any of its Subsidiaries to, change their respective fiscal
years.
SECTION 8.12. Change in Business. Neither Borrower will, nor will
either Borrower permit any of the Material Subsidiaries to, engage in any
business other than the acquisition, exploration and development of Mineral
Interests and the production, transportation or sale of Hydrocarbons therefrom
or as a holding company for any such business.
SECTION 8.13. Minimum Current Ratio of Borrowers. TEL will not
permit its ratio of Consolidated Current Assets to Consolidated Current
Liabilities to be less than 1.0 to 1 at any time.
SECTION 8.14. Restrictions on Distributions. Neither Borrower will,
nor will either Borrower permit any of its Subsidiaries to enter into or
become bound by any agreement, arrangement or understanding (including,
without limitation, their respective articles of association, certificate of
incorporation, bylaws, partnership agreement, regulations or other charter
documents) which limits, restricts, subordinates or impairs in any way the
right or ability of any Subsidiary of TEL to make Distributions to or
Investments in either Borrower or to repay any Debt or other obligation owed
to either Borrower.
ARTICLE IX
DEFAULTS
SECTION 9.1. Events of Default. If one or more of the following
events (collectively "Events of Default" and individually an "Event of
Default") shall have occurred and be continuing:
(a) either Borrower shall fail to pay when due any principal on
any Note;
(b) either Borrower shall fail to pay when due accrued interest
on any Note or any fees or any other amount payable hereunder and such failure
shall continue for a period of three (3) days following the due date;
(c) either Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 2.1(c), 7.1 or Article VIII of
this Agreement;
(d) either Borrower or any Subsidiary of either Borrower shall
fail to observe or perform any covenant or agreement contained in this
Agreement or the other Loan Papers (other than those referenced in Sections
9.1(a), (b) and (c)) and such failure continues for a period of twenty (20)
days after the earlier of (i) the date any Authorized Officer of such Borrower
acquires knowledge of such failure, or (ii) written notice of such failure has
been given to such Borrower by Administrative Agent or any Bank;
(e) any representation, warranty, certification or statement
made or deemed to have been made by either Borrower in this Agreement or by
either Borrower, any Subsidiary of TEL or any other Person on behalf of either
Borrower or on behalf of any Subsidiary of TEL in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove
to have been incorrect in any material respect when made;
(f) TEL or any of its Subsidiaries shall fail to make any
payment when due on any Debt of such Person in a principal amount equal to or
greater than $5,000,000 or any other event or condition shall occur which (i)
results in the acceleration of the maturity of any such Debt, or (ii) with
the giving of notice, lapse of time or both, unless cured or waived, will
entitle the holder of such Debt to accelerate the maturity thereof;
(g) TEL or any of its Subsidiaries shall default in the
observance or performance of any representation, warranty, covenant, agreement
or other obligation of TEL or any of its Subsidiaries under any Advance
Payment Contract and such default shall continue beyond the grace period (if
any) provided in such Advance Payment Contract;
(h) either Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be commenced
against either Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar Law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of sixty (60) days; or an order for relief shall be entered against
any such Person under any bankruptcy, insolvency or other similar Laws now or
hereafter in effect;
(j) one (1) or more judgments or orders for the payment of money
aggregating in excess of $5,000,000 shall be rendered against TEL or any of
its Subsidiaries and such judgment or order (i) shall continue unsatisfied and
unstayed for thirty (30) days, or (ii) is not fully paid and satisfied at
least ten (10) days prior to the date on which any of assets of the judgment
debtor may be lawfully sold to satisfy such judgment or order;
(k) with respect to any Plan of TEL or any ERISA Affiliate: (i)
TEL or any ERISA Affiliate shall incur any accumulated funding deficiency, as
defined in section 412 of the Code, in the aggregate in excess of $5,000,000,
or request a funding waiver from the Internal Revenue Service for
contributions to a Plan or Plans in the aggregate in excess of $5,000,000;
(ii) TEL or any ERISA Affiliate shall incur any withdrawal liability in the
aggregate in excess of $5,000,000 as a result of a complete or partial
withdrawal within the meaning of section 4203 or 4205 of ERISA; (iii) any
ERISA Event occurs with respect to any Plan and the then current value of such
Plan's benefit liabilities exceeds the then current value of such Plan's
assets available for the payment of such benefit liabilities by more than
$5,000,000 (or in the case of an ERISA Event involving the withdrawal of a
substantial employer, the withdrawing employer's proportionate share of such
excess exceeds such amount); (iv) an event or events occur pursuant to which
benefits under a Plan or Plans become payable which in the aggregate would
reasonably result in a direct liability to TEL or any ERISA Affiliate in
excess of $5,000,000; or (v) TEL or any of its Subsidiaries or any ERISA
Affiliate, or any other "party-in-interest" or "disqualified person", as such
terms are defined in section 3(14) of ERISA and section 4975(e)(2) of the
Code, shall engage in transactions which in the aggregate would reasonably
result in a direct or indirect liability to TEL or any of its Subsidiaries or
any ERISA Affiliate in excess of $5,000,000 under section 409 or 502 of ERISA
or section 4975 of the Code;
(l) any Person or group (as defined in Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934) shall become the direct or
indirect beneficial owner (as defined in Rule 13(d)(3) under the Securities
Exchange Act of 1934) of more than thirty percent (30%) of the total voting
power of all classes of Capital Stock then outstanding of TEL entitled
(without regard to the occurrence of any contingency) to vote in elections of
directors of TEL;
(m) (i) TEL, any of its Subsidiaries or the Grantor shall
default in the performance or observance of any obligation of any such party
under any of the License Agreements which default continues beyond the
applicable grace period (if any) provided in such documents, (ii) any party to
any of the License Agreements (other than the Grantor and TEL and its
Subsidiaries) shall default in the performance or observance of any obligation
of any such Person under any of the License Agreements which default continues
beyond the applicable grace period (if any) provided in such documents if such
default could reasonably be expected to have a Material Adverse Effect, (iii)
TEL or any of its Subsidiaries shall default in the performance or observance
of any obligation of such Person under the Joint Operating Agreement which
default shall continue beyond the applicable grace period (if any) in such
document, (iv) any party (other than TEL or any of its Subsidiaries) shall
default in the performance or observance of any obligations of such Person
under the Joint Operating Agreement which default continues beyond the
applicable grace period provided (if any) in such document if such default
could reasonably be expected to have a Material Adverse Effect, (v) any other
event shall occur or condition shall exist which shall give any party to any
License Agreement or the Joint Operating Agreement the right to cancel or
terminate any such Agreement, or (vi) any License Agreement or the Joint
Operating Agreement shall be cancelled, terminated, revoked or rescinded in
any respect or any party to any of such agreements shall deliver any notice of
cancellation, termination, revocation or rescission or take any other action
(including the commencement of any legal proceeding) seeking to cancel,
terminate, revoke, rescind or set aside any of such agreements;
(n) (i) TEC shall cease to be a direct, wholly owned Subsidiary
of TEL, (ii) TIOC shall cease to be a direct, wholly owned Subsidiary of TEC
or TEL, (iii) TOCT shall cease to be a direct, wholly owned Subsidiary of
TIOC, TEL or TEC, (iv) TOCT (JDA) shall cease to be a direct, wholly owned
Subsidiary of TOCT, TIOC-Cayman, TEL, or any combination thereof, (v)
TIOC-Cayman shall cease to be a direct, wholly owned Subsidiary of TEL, (vi)
TCI shall cease to be a direct, wholly owned Subsidiary of either TEC, TIOC or
TEL, (vii) CTOC shall cease to be a fifty percent (50%) owned Subsidiary of
TOCT (JDA), TIOC-Cayman or TEL, (viii) Triton International Petroleum, Inc.
shall cease to be a direct, wholly owned Subsidiary of TEL, or (ix) Triton
Pipeline Colombia, Inc. shall cease to be a direct, wholly owned Subsidiary of
Triton International Petroleum, Inc. (other than, in the case of clauses
(viii) and (ix) hereof, as a result of a transaction permitted under Section
8.5(b));
(o) the confiscation, expropriation or other taking by any
Governmental Authority of any of the Material Assets;
(p) the imposition of (i) exchange controls, (ii) restrictions
on TCI's ability to sell, or on the price at which TCI may sell, any
Hydrocarbons produced by or for the account of TCI from the Colombian Assets,
or (iii) restrictions on TCI's ability to convert its funds into readily
available United States dollars which, in any such case, could reasonably be
expected to have a Material Adverse Effect;
(q) an increase in the rate of Colombian income tax applicable
to the income or gains realized by TCI or on the distribution by TCI of cash,
or other assets from Colombia, by more than 10% over the rate presently
applicable to income or gains realized by TCI, or distributions made by TCI's
Colombian branch as set forth on Schedule 6 hereto; or
(r) the imposition of any excise Tax, wellhead Tax or other Tax
or duty imposed on the extraction, ownership, exportation or sale of
Hydrocarbons by or for the account of TCI other than Taxes described on
Schedule 6 hereto which results in an increase in TCI's aggregate annual Tax
liability for Taxes described in this Section 9.1(r) of ten percent (10%) or
more; then, and in every such event, Administrative Agent shall without
presentment, notice or demand (unless expressly provided for herein)
of any kind (including, without limitation, notice of intention to
accelerate and acceleration), all of which are hereby waived, (a) if
requested by Required Banks, terminate the Commitments and they shall
thereupon terminate, and (b) if requested by Required Banks, take such other
actions as may be permitted by the Loan Papers including, declaring the Notes
(together with accrued interest thereon) to be, and the Notes shall
thereupon become, immediately due and payable; provided that (c)
in the case of any of the Events of Default specified in Sections 9.1(h)
or (i), without any notice to Borrowers or any other act by
Administrative Agent or Banks, the Commitments shall thereupon
terminate and the Notes (together with accrued interest thereon)
shall become immediately due and payable. Without limiting the foregoing,
upon the occurrence of an Event of Default, Borrowers shall, on the next
succeeding Domestic Business Day, deposit with Administrative Agent cash in
such amounts as Administrative Agent may request, up to a maximum amount equal
to the aggregate existing Letter of Credit Exposure of all Banks. Any amounts
so deposited shall be held by Administrative Agent for the ratable benefit of
all Banks as security for the outstanding Letter of Credit Exposure and the
other Obligations, and Borrowers will, in connection therewith, execute and
deliver such security agreements in form and substance satisfactory to
Administrative Agent which it may, in its discretion, require. As drafts or
demands for payment are presented under any Letter of Credit, Administrative
Agent shall apply such cash to satisfy such drafts or demands. When either
(i) the Commitments have been terminated, all Letters of Credit have expired
and the Obligations have been repaid in full, or (ii) all Events of Default
have been waived in writing by Required Banks or cured to the satisfaction of
Required Banks, Administrative Agent shall release to Borrowers any remaining
cash deposited under this Section 9.1. Whenever Borrowers are required to
make deposits under this Section 9.1 and fail to do so on the day such
deposit is due, Administrative Agent or any Bank may, without notice to either
Borrower, make such deposit (whether by application of proceeds of any
collateral for the Obligation, by transfers from other accounts maintained
with any Bank or otherwise) using any funds then available to any Bank of
either Borrower.
ARTICLE X
AGENTS
SECTION 10.1. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the Notes and the
other Loan Papers as are delegated to such Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto,
provided that, as between and among Banks, no Agent will prosecute, settle
or compromise any claim against either Borrower or release or institute
enforcement proceedings, except with the consent of Required Banks. Each Bank
and each Borrower agrees that none of the Agents are a fiduciary for Banks or
for either Borrower but each simply is acting in the capacity described herein
to alleviate administrative burdens for each Borrower and each Bank and that
no Agent has any duties or responsibilities to Banks or Borrowers except those
expressly set forth herein.
SECTION 10.2. Agents and Affiliates. Each Agent in its individual
capacity and not as Agent hereunder shall have the same rights and powers
under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not an Agent hereunder, and each Agent
in its individual capacity and not as Agent hereunder and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with either Borrower and their Subsidiaries or any Affiliate of
either Borrower as if such parties were not Agents hereunder.
SECTION 10.3. Action by Agents. The obligations of Agents
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, no Agent shall be required to take any action
with respect to any Default, except as expressly provided in Article IX.
Notwithstanding the administrative authority delegated to Agents, no Agent
shall without the prior written approval of all Banks cause or permit any
modification of the Loan Papers which would (a) increase the Commitment of any
Bank, (b) forgive any of the principal of or reduce the rate of interest on
the Loan or any fees provided for hereunder, (c) postpone the dates fixed for
payment of principal or interest on the Loan or any fees payable hereunder,
including the Termination Date, (d) amend, modify or waive Sections 8.1(a),
(b) or (c) hereof, (e) change the percentage of the Total Commitment, or
the number of Banks that shall be required for any of them to take any action
under Section 10.5 or any other provision under this Agreement, or (f)
permit either Borrower to assign any of its rights or obligations hereunder.
Subject to the foregoing, each Agent shall grant such waivers, consents or
approvals in favor of Borrowers as Required Banks shall direct.
SECTION 10.4. Consultation with Experts. Each Agent may consult
with legal counsel (who may be counsel for Borrowers), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 10.5. LIABILITY OF AGENTS. NONE OF THE AGENTS NOR ANY OF
THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES SHALL BE LIABLE FOR
ANY ACTION TAKEN OR NOT TAKEN BY SUCH AGENT IN CONNECTION HEREWITH (A) WITH
THE CONSENT OR AT THE REQUEST OF REQUIRED BANKS OR (B) IN THE ABSENCE OF ITS
OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IT BEING THE INTENTION OF BANKS
THAT SUCH PARTIES SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF THEIR OWN
NEGLIGENCE. None of the Agents nor any of their respective directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (a) any statement, warranty or
representation made in connection with this Agreement or any Borrowing
hereunder, (b) the performance or observance of any of the covenants or
agreements of Borrowers, (c) the satisfaction of any condition specified in
Article V, except receipt of items required to be delivered to
Administrative Agent, or (d) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. No Agent shall incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other writing (which may
be a bank wire, telex or similar writing) believed by it to be genuine or to
be signed by the proper party or parties or upon any oral notice which such
Agent believes will be confirmed in writing by the proper party or parties.
If any Agent fails to take any action required to be taken by it under the
Loan Papers after a default and within a reasonable time after being requested
to do so by any Bank (after such requesting Bank has obtained the approval of
such other Banks as required), such Agent shall not suffer or incur any
liability as a result thereof, but such requesting Bank may request such Agent
to resign, whereupon such Agent shall so resign pursuant to Section 10.9.
SECTION 10.6. Delegation of Duties. Each Agent may execute any of
its duties hereunder by or through officers, directors, employees, attorneys,
or agents.
SECTION 10.7. Indemnification. Each Bank shall, ratably in
accordance with its Commitment Percentage, indemnify each Agent (to the extent
not reimbursed by Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such Agent's gross negligence or willful misconduct) that such
Agent may suffer or incur in connection with this Agreement or any action
taken or omitted by Agent hereunder, including, without limitation, matters
arising out of such Agent's own ordinary negligence. IT IS THE EXPRESS
INTENTION OF EACH BANK THAT EACH AGENT SHALL BE INDEMNIFIED HEREUNDER FOR THE
CONSEQUENCES OF ITS OWN ORDINARY NEGLIGENCE.
SECTION 10.8. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon any Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent
or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 10.9. Successor Agent. Each Agent may resign at any time
that an Event of Default is continuing by giving written notice thereof to
Banks and Borrowers. In addition, Borrowers may, prior to a Default, request
the designation by Banks of a successor Agent. Upon any such request by
Borrowers or resignation by an Agent (which, in the absence of an Event of
Default, shall be made only with the consent of each Borrower), Required Banks
shall have the right to appoint a successor Agent, which shall be one of the
Banks and, except during the continuance of an Event of Default, shall be
approved by each Borrower, such approval to not be unreasonably withheld. If
no successor Agent shall have been so appointed by Required Banks, so approved
by Borrowers (if necessary), and accepted such appointment within thirty (30)
days after the retiring Agent's giving of notice of resignation or Borrowers'
request for a successor Agent, then the retiring Agent may, on behalf of
Banks, appoint a successor Agent (as applicable), which shall (i) be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000 and (ii) unless an Event of Default is continuing, be approved by
each Borrower (such approval to not be unreasonably withheld). Upon the
acceptance of its appointment as a successor Agent hereunder, such successor
Agent shall thereupon succeed to and become vested with all the rights and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. After any Agent's resignation
hereunder, the provisions of this Article X shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent hereunder. Borrowers shall be entitled to recommend a successor Agent
at the time of designation of any successor Agent pursuant to this Section
10.9. Banks shall give due consideration to the successor nominated by
Borrowers, but shall have no obligation to approve such nominee.
ARTICLE XI
NATURE OF OBLIGATIONS
SECTION 11.1. Joint and Several/Cross Guarantees. Each Borrower
hereby covenants and agrees that notwithstanding any provision to the contrary
contained in this Agreement or any other Loan Paper, and regardless of whether
the proceeds of the Loan and Letters of Credit are utilized by TEL and its
Subsidiaries other than TEC and its Subsidiaries or by TEC and its
Subsidiaries, the obligations of each Borrower for the payment and performance
of the Obligations shall be joint and several. In furtherance of the
foregoing, each Borrower hereby absolutely and unconditionally guarantees
payment and performance by the other Borrower of all liabilities and
obligations of such other Borrower for the payment and performance in full of
the Obligations when due.
SECTION 11.2. Independent Recourse. In the event of any default in
payment or performance of the Obligations, it shall not be necessary for any
Agent or any Bank, in order to enforce payment or performance by a Borrower,
first, to institute suit or exhaust its remedies against the other Borrower,
to have the other Borrower joined with such Borrower in any suit brought under
this Agreement or any other Loan Paper or to enforce any Agent's or any Banks'
rights against any security which shall ever have been given to secure the
Obligations. Each Borrower further agrees that all Banks, in their
discretion, may compound or settle with a Borrower for such consideration as
Banks may deem proper and may release a Borrower from liability hereunder,
and that no such action shall impair the rights of any Agent or Banks to
collect the Obligations (or the unpaid balance thereof) from the remaining
Borrower.
SECTION 11.3. Obligations not Affected. The liability of a Borrower
for the payment and performance of the Obligations shall in no manner be
impaired, affected or released by the insolvency, bankruptcy, making of an
assignment for the benefit of creditors, arrangement, compensation,
composition or readjustment of the other Borrower, or any proceedings
affecting the status, existence or assets of the other Borrower or other
similar proceedings instituted by or against the other Borrower and affecting
the assets of the other Borrower.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telecopy or
similar writing) and shall be given, if to any Agent or any Bank, at its
address or telecopy number set forth on Schedule 1 hereto, and if given to
either Borrower, at their address or telecopy number set forth on the
signature pages hereof (or in either case, at such other address or telecopy
number as such party may hereafter specify for the purpose by notice to
Administrative Agent, Borrowers and each Bank). Each such notice, request or
other communication shall be effective (a) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section
12.1 and the appropriate answerback is received or receipt is otherwise
confirmed, (b) if given by mail, three (3) Domestic Business Days after
deposit in the mails with first class postage prepaid, addressed as aforesaid
or (c) if given by any other means, when delivered at the address specified in
this Section 12.1; provided that notices to Administrative Agent under
Article II or V shall not be effective until received.
SECTION 12.2. No Waivers. No failure or delay by any Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Paper shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law or in any of the other Loan Papers.
SECTION 12.3. Expenses; Documentary Taxes; Indemnification. (a)
Borrowers shall pay (i) all reasonable out-of-pocket expenses of
Administrative Agent, including reasonable fees and disbursements of special
counsel for Administrative Agent, in connection with the preparation of this
Agreement and the other Loan Papers and, if appropriate, the recordation of
the Loan Papers, any waiver or consent hereunder or any amendment hereof or
supplement hereto or any Default or alleged Default hereunder, and (ii) if an
Event of Default occurs, all reasonable out-of-pocket expenses incurred by any
Agent or any Bank, including fees and disbursements of counsel in connection
with such Event of Default and collection and other enforcement proceedings
resulting therefrom, fees of auditors and consultants incurred in connection
therewith and investigation expenses incurred by any Agent or any Bank in
connection therewith. Borrowers shall indemnify each Bank against any Taxes
imposed by reason of the execution and delivery of this Agreement or the Notes
(other than Taxes imposed on the overall net income of such Bank or its
Lending Office imposed by the jurisdiction in which such Bank's principal
executive office or Lending office is located).
(b) Borrowers agree to indemnify each Agent and each Bank and
hold each Agent and each Bank harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind (including,
without limitation, the reasonable fees and disbursements of counsel for each
Agent and each Bank in connection with any investigative, administrative or
judicial proceeding, whether or not such Bank shall be designated a party
thereto) which may be incurred by any Bank or by any Agent relating to or
arising out of (i) the existence of this Agreement or any of the Loan Papers,
including the performance by Borrowers, any Agent or any Bank of its
obligations hereunder, (ii) any transactions contemplated hereby or by any of
the other Loan Papers, (iii) the exercise of any rights or remedies by any
Agent or any Bank under this Agreement or applicable Law following any Default
or Event of Default hereunder or (iv) any actual or proposed use of proceeds
of the Loan or Letters of Credit hereunder; provided that none of the
Agents nor any Bank shall have the right to be indemnified hereunder for its
own gross negligence or willful misconduct, IT BEING THE EXPRESS INTENTION OF
BORROWERS THAT EACH BANK AND EACH AGENT SHALL BE INDEMNIFIED FOR THE
CONSEQUENCES OF ITS OWN ORDINARY NEGLIGENCE.
SECTION 12.4. Right and Sharing of Set-Offs. (a) Upon the
occurrence and during the continuance of an Event of Default, each Bank is
hereby authorized at any time and from time to time, to the fullest extent
permitted by Law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the
account of either Borrower against any and all of the Obligations of either
Borrower now or hereafter existing under this Agreement and any Note held by
such Bank, irrespective of whether or not such Bank shall have made any demand
under this Agreement or such Note and although such Obligations may be
unmatured. Each Bank agrees promptly to notify Borrowers after any such
setoff and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of each Bank under this Section 12.4(a) are in addition to other
rights and remedies (including, without limitation, other rights of setoff)
which such Bank may have.
(b) Each Bank agrees that if it shall, by exercising any right
of setoff or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to any Note held
by it which is greater than the proportion received by any other Bank in
respect of the aggregate amount of principal and interest due with respect to
any Note held by such other Bank, Bank receiving such proportionately greater
payment shall purchase such participations in the Notes held by the other
Banks, and such other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to the Notes held by
Banks shall be shared by Banks ratably; provided that nothing in this
Section 12.4 shall impair the right of any Bank to exercise any right of
setoff or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of Borrowers other than their
indebtedness under the Notes. Borrowers agree, to the fullest extent they may
effectively do so under applicable Law, that any holder of a participation in
a Note may exercise rights of setoff or counterclaim and other rights with
respect to such participation as fully as if such holder of a participation
were a direct creditor of Borrowers in the amount of such participation.
Except as expressly provided otherwise herein, the proportionate share of
principal, interest, fees and other amounts to which a Bank is entitled
hereunder is based on its Commitment Percentage.
SECTION 12.5. Amendments and Waivers. Any provision of this
Agreement, the Notes or the other Loan Papers may be amended or waived if, but
only if such amendment or waiver is in writing and is signed by Borrowers and
Required Banks (and, if the rights or duties of any Agent are affected
thereby, by such Agent); provided that no such amendment or waiver shall,
unless signed by all Banks, (a) increase the Commitment of any Bank, (b)
forgive any of the principal of or reduce the rate of interest on the Loan or
any fees provided for hereunder, (c) postpone the dates fixed for payment of
principal or interest on the Loan or any fees payable hereunder, including the
Termination Date, (d) amend, modify or waive Sections 8.1(a), (b) or (c),
(e) change the percentage of the Total Commitment or the number of banks that
shall be required for any of them to take any action under this Section 12.5
or any other provision under this Agreement, or (f) permit either Borrower to
assign any of its rights of obligations hereunder.
SECTION 12.6. Survival. All representations, warranties and covenants
made by Borrowers herein or in any certificate or other instrument delivered
by them or in their behalf under the Loan Papers shall be considered to have
been relied upon by Banks and shall survive the delivery to Banks of such Loan
Papers or the extension of the Loan (or any part thereof), regardless of any
investigation made by or on behalf of Banks.
SECTION 12.7. Limitation on Interest. Regardless of any provision
contained in the Loan Papers, Banks shall never be entitled to receive,
collect, or apply, as interest on the Loan, any amount in excess of the
Maximum Lawful Rate, and in the event any Bank ever receives, collects or
applies as interest any such excess, such amount which would be deemed
excessive interest shall be deemed a partial prepayment of principal and
treated hereunder as such; and if the Loan is paid in full, any remaining
excess shall promptly be paid to Borrowers. In determining whether or not the
interest paid or payable under any specific contingency exceeds the Maximum
Lawful Rate, Borrowers and Banks shall, to the extent permitted under
applicable Law, (a) characterize any nonprincipal payment as an expense, fee
or premium rather than as interest, (b) exclude voluntary prepayments and the
effects thereof and (c) amortize, prorate, allocate and spread, in equal
parts, the total amount of the interest throughout the entire contemplated
term of the Notes, so that the interest rate is the Maximum Lawful Rate
throughout the entire term of the Notes; provided, however, that if the
unpaid principal balance thereof is paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received for
the actual period of existence thereof exceeds the Maximum Lawful Rate, Banks
shall refund to Borrowers the amount of such excess and, in such event, Banks
shall not be subject to any penalties provided by any laws for contracting
for, charging, taking, reserving or receiving interest in excess of the
Maximum Lawful Rate.
SECTION 12.8. Invalid Provisions. If any provision of the Loan
Papers is held to be illegal, invalid, or unenforceable under present or
future Laws effective during the term thereof, such provision shall be fully
severable, the Loan Papers shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part thereof, and
the remaining provisions thereof shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or
by its severance therefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision there shall be added automatically as a part of the
Loan Papers a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid and
enforceable.
SECTION 12.9. Waiver of Consumer Credit Laws. Pursuant to Article
15.10(b) of Chapter 15, Subtitle 79, Revised Civil Statutes of Texas, 1925, as
amended, Borrowers agree that such Chapter 15 shall not govern or in any
manner apply to the Loans.
SECTION 12.10. Successors and Assigns. (a) Each Loan Paper
binds and inures to the parties to it, any intended beneficiary of it, and
each of their respective successors and permitted assigns. Neither Borrower
shall assign or transfer any rights or obligations under any Loan Paper
without first obtaining all Banks' consent, and any purported assignment or
transfer without all Banks' consent is void. No Bank may transfer, pledge,
assign, sell any participation in, or otherwise encumber its portion of the
Obligations except as permitted by clauses (b) or (c) below.
(b) Any Bank may (subject to the provisions of this section, in
accordance with applicable law, in the ordinary course of its business, and at
any time) sell to one or more Persons (each a "Participant") participating
interests in its portion of the Obligations. The selling Bank remains a
"Bank" under the Loan Papers, the Participant does not become a "Bank" under
the Loan Papers, and the selling Bank's obligations under the Loan Papers
remain unchanged. The selling Bank remains solely responsible for the
performance of its obligations and remains the holder of its share of the
outstanding Loan for all purposes under the Loan Papers. Borrowers and each
Agent shall continue to deal solely and directly with the selling Bank in
connection with that Bank's rights and obligations under the Loan Papers, and
each Bank must retain the sole right and responsibility to enforce due
obligations of Borrowers. Participants have no rights under the Loan Papers
except certain voting rights as provided below. Subject to the following,
each Bank may obtain (on behalf of its Participants) the benefits of Sections
3.3 and 3.4 and Article IV with respect to all participations in its part
of the Obligations outstanding from time to time so long as Borrowers are not
obligated to pay any amount in excess of the amount that would be due to that
Bank under Sections 3.3, 3.4, and Article IV calculated as though no
participations have been made. No Bank may sell any participating interest
under which the Participant has any Rights to approve any amendment,
modification, or waiver of any Loan Paper except as to matters requiring the
approval of all Banks as set forth in Section 12.5.
(c) Each Bank may make assignments to the Federal Reserve Bank.
Each Bank may also assign to one or more assignees (each an "Assignee") all
or any part of its rights and obligations under the Loan Papers so long as
(i) the assignor Bank and Assignee execute and deliver to Administrative
Agent and Borrowers for their consent and acceptance (that may not be
unreasonably withheld) an assignment and assumption agreement in substantially
the form of Exhibit I (an "Assignment and Assumption Agreement") and, pay
to Administrative Agent a processing fee of $3,000, and (ii) the conditions
for that assignment set forth in the applicable Assignment and Assumption
Agreement are satisfied. The "Effective Date" in each Assignment and
Assumption Agreement must (unless a shorter period is agreeable to Borrowers
and Administrative Agent) be at least five (5) Domestic Business Days after it
is executed and delivered by the assignor Bank and the Assignee to
Administrative Agent and each Borrower for acceptance. Once that Assignment
and Assumption Agreement is accepted by each Agent and each Borrower, then,
from and after the Effective Date stated in it (i) the Assignee automatically
becomes a party to this agreement and, to the extent provided in that
Assignment and Assumption Agreement, has the rights and obligations of a Bank
under the Loan Papers, (ii) the assignor Bank, to the extent provided in that
Assignment and Assumption Agreement, is released from its obligations to fund
Borrowings under this Agreement and its reimbursement obligations under this
Agreement and, in the case of an Assignment and Assumption Agreement covering
all of the remaining portion of the assignor Bank's rights and obligations
under the Loan Papers, that Bank ceases to be a party to the Loan Papers,
(iii) Borrowers shall execute and deliver to the assignor Bank and the
Assignee the appropriate Notes in accordance with this Agreement following the
transfer, (iv) upon delivery of the Notes under clause (iii) preceding, the
assignor Bank shall return to Borrowers all Notes previously delivered to that
Bank under this Agreement, and (v) Schedule 1 is automatically deemed to
be amended to reflect the name, address, telecopy number, and Commitment of
the Assignee and the remaining Commitment (if any) of the assignor Bank, and
Administrative Agent shall prepare and circulate to Borrowers and Banks an
amended Schedule 1 reflecting those changes.
▇▇▇▇▇▇▇ ▇▇.▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FEDERAL LAW. THIS
AGREEMENT AND EACH NOTE AND THE OTHER LOAN PAPERS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS AND
THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA WITHOUT REFERENCE TO ITS
CHOICE OF LAW PROVISIONS.
SECTION 12.12. Consent to Jurisdiction; Waiver of Immunities. (a)
Each Borrower hereby irrevocably submits to the jurisdiction of any Texas
State or Federal court sitting in the Northern District of Texas over any
action or proceeding arising out of or relating to this Agreement or any other
Loan Papers, and each Borrower hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such Texas
State or Federal court. Each Borrower hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the date
hereof at ▇▇▇ ▇. ▇▇. ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as its agent to receive on
behalf of each Borrower proper service of copies of the summons and complaint
and any other process which may be made by mailing or delivering a copy of
such process to each Borrower (as applicable) in care of the Process Agent at
the Process Agent's above address, and each Borrower hereby irrevocably
authorizes and directs the Process Agent to accept such service on their
behalf. As an alternative method of service, each Borrower also irrevocably
consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to each Borrower at its
respective address specified in Section 12.1. Each Borrower agree that a
final judgment on any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this Section 12.12 shall affect any right of
Banks to serve legal process in any other manner permitted by law or affect
the right of any Bank to bring any action or proceeding against any Borrower
or any of their Subsidiaries or their properties in the courts of any other
jurisdictions.
(c) To the extent that any Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
such Borrower hereby irrevocably waives such immunity in respect of its
obligations under this Agreement and the other Loan Papers.
SECTION 12.13. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when Administrative Agent
shall have received counterparts hereof signed by all of the parties hereto
or, in the case of any Bank as to which an executed counterpart shall not have
been received, Administrative Agent shall have received telegraphic or other
written confirmation from such Bank of execution of a counterpart hereof by
such Bank.
SECTION 12.14. No Third Party Beneficiaries. It is expressly
intended that there shall be no third party beneficiaries of the covenants,
agreements, representations or warranties herein contained other than third
party beneficiaries permitted pursuant to Section 12.10(b).
SECTION 12.15. COMPLETE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
PAPERS COLLECTIVELY REPRESENT THE FINAL AGREEMENT BY AND AMONG BANKS, AGENTS
AND BORROWERS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF BANKS, AGENTS AND BORROWERS.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN BANKS, AGENTS AND BORROWERS.
SECTION 12.16. WAIVER OF JURY TRIAL. BORROWERS, BANKS AND AGENTS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN PAPERS AND
FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers on the day and year
first above written.
BORROWERS:
TRITON ENERGY LIMITED,
a Cayman Islands company
By:
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President and Chief Financial Officer
Address for Notice:
Caledonian House
▇▇▇▇ Street
P.O. Box 1043
Georgetown, Grand Cayman
Cayman Islands
with a copy to:
Triton Exploration Services, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
TRITON ENERGY CORPORATION,
a Delaware corporation
By:
▇▇▇▇▇ ▇▇▇▇,
Vice President
Address for Notice:
Triton Exploration Services, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
BANKS:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
BARCLAYS BANK PLC
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
MEESPIERSON N.V.
By:
Name:
Title:
SOCIETE GENERALE SOUTHWEST AGENCY
By:
Name:
Title:
ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
DOCUMENTARY AGENT:
BARCLAYS BANK PLC
By:
Name:
Title:
CO-AGENTS:
MEESPIERSON N.V.
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
SCHEDULE 1
FINANCIAL INSTITUTIONS
BANKS COMMITMENT AMOUNT COMMITMENT ALLOCATED SHARE OF
-------------------------- ------------------ ----------- -------------------
PERCENTAGE CLOSING FEE
----------- -------------------
NationsBank of Texas, N.A. $ 32,500,000 26.00% $ 162,500
Barclays Bank PLC $ 32,500,000 26.00% $ 162,500
MeesPierson N.V. $ 25,000,000 20.00% $ 87,500
The Chase Manhattan Bank $ 25,000,000 20.00% $ 87,500
Societe Generale Southwest $ 10,000,000 8.00% $ 20,000
Agency
TOTALS: $ 125,000,000 100% $ 520,000
-------------------------- ------------------ ----------- -------------------
DOMESTIC EURODOLLAR
BANKS LENDING OFFICE LENDINGOFFICE ADDRESS FOR NOTICE
---------------------------------- ------------------------------ ------------------------------ ------------------------------
NationsBank of Texas, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Barclays Bank PLC ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
MeesPierson N.V. Loan Administration Loan Administration ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Coolsingel 93 Coolsingel 93 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇ ▇.▇. ▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
3000 AS Rotterdam 3000 AS Rotterdam and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The Netherlands The Netherlands Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇ ▇▇▇▇ Attn: ▇▇. ▇▇▇ ▇▇ ▇▇▇▇
Fax No. (▇▇▇) ▇▇-▇▇-▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇-▇▇-▇▇▇-▇▇▇▇
with a copy to: with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
The Chase Manhattan Bank ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Societe Generale, Southwest Agency ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------ ------------------------------ ------------------------------
Administrative Agent - Address:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Documentary Agent - Address:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Co-Agents' Addresses:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Texas Commerce Bank National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ German
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
MeesPierson N.V. with a copy to:
Loan Administration MeesPierson N.V.
Coolsingel ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3000 AS Rotterdam Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The Netherlands Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇ ▇▇▇▇
Fax No. (▇▇▇) ▇▇-▇▇-▇▇▇-▇▇▇▇
EXHIBIT A
NOTE
$_______________Dallas, Texas_______________, 1996
FOR VALUE RECEIVED, the undersigned, Triton Energy Limited, a Cayman
Islands company, and Triton Energy Corporation, a Delaware corporation
(collectively, "Maker"), each hereby jointly and severally promise to pay to
the order of [Name of Bank or Lending Office] ("Payee"), at the offices of
NationsBank of Texas, N.A., as Administrative Agent (herein so called), at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, for Payee and the other Banks
hereinafter described, the principal sum of [Amount of such Bank's
Commitment] ($___________________), or so much thereof as may be advanced and
outstanding, together with interest, as hereinafter described.
This Note has been executed and delivered pursuant to, and is subject to
and governed by, that certain Credit Agreement dated as of August ___, 1996
(as hereafter renewed, extended, amended, or supplemented, the "Agreement")
among each Maker, Administrative Agent, Barclays Bank PLC, as Documentary
Agent, MeesPierson N.V. and The Chase Manhattan Bank, as Co-Agents, and the
financial institutions listed on Schedule 1 thereto as Banks and is one of
the "Notes" referred to therein. Unless otherwise defined herein or unless
the context hereof otherwise requires, each term used herein with its initial
letter capitalized has the meaning given to such term in the Agreement.
Each Maker jointly and severally promises to pay the principal balance of
this Note at the times and in the amounts required by the Agreement. Each
Maker also jointly and severally promises to pay interest on the unpaid
principal amount hereof in like money at the offices of Administrative Agent
above referenced from the date hereof at the rates and at the times provided
in the Agreement. The entire outstanding principal balance hereof and all
accrued but unpaid interest therein shall be due and payable in full on the
Termination Date.
Upon and subject to the terms and conditions of the Agreement, Maker
shall be entitled to prepay the principal of or interest on this Note from
time to time and at any time, in whole or in part.
Upon the occurrence and continuance of an Event of Default, and upon the
conditions stated in the Agreement, Administrative Agent may, at its option
and shall, to the extent required in accordance with the terms of the
Agreement, declare the entire unpaid principal of and accrued interest on this
Note immediately due and payable (provided that, upon the occurrence of
certain Events of Default, and upon the conditions stated in the Agreement,
such acceleration shall be automatic), without notice, demand, or
presentment, all of which are hereby waived, and the holder hereof shall have
the right to offset against this Note any sum or sums owed by the holder
hereof to either Maker.
TRITON ENERGY LIMITED,
a Cayman Islands company
By:
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President and
Chief Financial Officer
TRITON ENERGY CORPORATION,
a Delaware corporation
By:
▇▇▇▇▇ ▇▇▇▇,
Vice President
ADVANCES, MATURITIES, AND
PAYMENTS OF PRINCIPAL AND INTEREST
Payee's
Commitment Expiration Rate of
Percentage of Interest Amount of Amount of Unpaid
Borrowing of Interest Applicable to Principal Interest Principal Notation
Date Borrowing Period Tranche Paid Paid Balance Made By
--------- ---------- ---------- ------------- --------- --------- --------- --------
EXHIBIT B
SUBORDINATION AGREEMENT
This Subordination Agreement (this "Agreement") is executed this ___
day of ___________, 199__, by and among [NAME OF TEL/TEC SUBSIDIARY] a _______
corporation (hereinafter "Subsidiary"), the financial institutions listed
under the designation "Banks" on the signature pages hereto ("Banks") and
NationsBank of Texas, N.A., as Administrative Agent for Banks pursuant to the
Credit Agreement (as herein defined).
W I T N E S E T H:
WHEREAS, Subsidiary is, directly or indirectly, a wholly-owned subsidiary
of [TRITON ENERGY LIMITED, A CAYMAN ISLANDS COMPANY ("TEL")] [TRITON ENERGY
CORPORATION, A DELAWARE CORPORATION ("TEC")]; and
WHEREAS, [TEL] [TRITON ENERGY LIMITED, ("TEL")] AND [TEC] [TRITON
ENERGY CORPORATION ("TEC")], as Borrowers (referred to herein collectively
as "Borrowers"), NationsBank of Texas, N.A., as Administrative Agent,
Barclays Bank PLC, as Documentary Agent, MeesPierson N.V. and The Chase
Manhattan Bank, as Co-Agents, and Banks, are parties to that certain Credit
Agreement dated as of August ___, 1996, pursuant to which Banks have agreed to
provide Borrowers with a revolving credit facility, all on the terms more
particularly set forth therein (such Credit Agreement, as the same may have
been or may hereafter be modified, amended, renewed, extended, supplemented or
restated, is hereinafter referred to as the "Credit Agreement"; unless
otherwise defined herein, all terms used herein with their initial letter
capitalized shall have the meaning given such terms in the Credit Agreement);
and
WHEREAS, it is contemplated that Subsidiary may make loans, advances and
other extensions of credit from time to time to Borrowers, and Borrowers may
otherwise incur liabilities and obligations to Subsidiary (all loans,
advances, debts, liabilities and obligations of every nature which may now, or
at any time hereafter, be owed by either Borrower to Subsidiary are
collectively referred to herein as the "Subordinate Obligations"); and
WHEREAS, pursuant to the Credit Agreement, Borrowers are prohibited from
incurring debts, liabilities and obligations to Subsidiary unless such debts,
liabilities and obligations are subordinated to the Obligations on the terms
set forth herein.
NOW, THEREFORE, in order to comply with the terms of the Credit Agreement
and recognizing the valuable benefits to be derived by Subsidiary as a result
of such compliance and as a result of the extensions of credit which may be
made by Banks to Borrowers from time to time, Subsidiary hereby agrees with
Banks and Administrative Agent as follows:
1. Subordination Generally;Payment Prohibited. The Subordinate
Obligations shall be subordinate, junior and inferior in right of payment to
the prior payment in full of the Obligations. For so long as a Default or
Event of Default has occurred and is continuing, Borrowers shall be prohibited
from making, and Subsidiary shall be prohibited from receiving, any payment
whatsoever on account of the Subordinate Obligations.
2. Subordinate Obligations Unsecured. Subsidiary hereby represents and
warrants to Administrative Agent and each Bank that the Subordinate
Obligations are not secured by any Lien encumbering any asset of either
Borrower or any asset of any Subsidiary of either Borrower. For so long as a
Default or Event of Default has occurred and is continuing, Subsidiary shall
be prohibited from accepting, and Borrowers and each of their respective
affiliates shall be prohibited from granting a Lien on any of their respective
assets to secure the Subordinate Obligations.
3. Insolvency Proceedings. Upon any distribution of assets of either
Borrower pursuant to or during (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to such Borrower or its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of such Borrower, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
such Borrower (any such case, proceeding, receivership, liquidation,
reorganization, liquidation, dissolution, winding up or assignment of the type
described in the preceding clauses (a), (b) or (c) is referred to herein as a
"Proceeding"), then in the event of any such Proceeding, Banks shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Obligations, or provision shall be made for such payment in
money or money's worth, before Subsidiary shall be entitled to receive any
payment of any type on account of the Subordinate Obligations, and to that end
Banks shall be entitled to receive, for application to the payment of the
Obligations, any payment or distribution of any kind or character, whether in
cash, property or securities (including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other
indebtedness of such Borrower being subordinated to the payment of the
Subordinate Obligations) which may be payable or deliverable in respect of the
Subordinate Obligations in any such Proceeding. Subsidiary irrevocably
authorizes and empowers Administrative Agent on behalf of Banks, to demand,
▇▇▇ for, collect and receive any such payment or distribution and to receipt
therefor, and to file and vote all such claims and take all such action, in
the name of Subsidiary or otherwise, as Administrative Agent may determine to
be necessary or appropriate for the enforcement of these subordination
provisions or the enforcement and collection of the Subordinate Obligations.
Subsidiary will also execute and deliver such further instruments confirming
such authorizations and such powers of attorney, proofs of claim, assignments
of claim, and other instruments as may be requested by Administrative Agent in
order to enable Administrative Agent to enforce, on behalf of Banks any and
all claims of or in respect of the Subordinate Obligations. In the event
that, notwithstanding the foregoing provisions of this paragraph, Subsidiary
shall have received any payment or distribution of assets of such Borrower of
any kind or character, whether in cash, property or securities (including any
such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of such Borrower being subordinated to
the payment of Subordinate Obligations) before all Obligations are paid in
full or payment thereof provided for, such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of such Borrower for application to the payment of
all Obligations remaining unpaid, to the extent necessary to pay all
Obligations in full, after giving effect to any concurrent payment or
distribution to or for the holders of the Obligations.
4. Remedial Standstill. Notwithstanding any other provision of this
Agreement to the contrary, until the Obligations are finally and indefeasibly
paid in full and all obligations of Banks and any Agent under the Credit
Agreement are terminated, Subsidiary shall be prohibited from taking any
action towards the collection of the Subordinate Obligations or the payment of
any other amounts in respect of the Subordinate Obligations. Without limiting
the foregoing, during any such period, Subsidiary shall be prohibited from
directly or indirectly, (a) accelerating the maturity of the Subordinate
Obligations, (b) suing for the collection or enforcement of the Subordinate
Obligations (including, without limitation, the commencement or joining with
any other creditors of either Borrower in the commencement of any bankruptcy,
reorganization, receivership or insolvency proceeding against such Borrower),
or (c) exercising any right of set off for the collection of any amounts due
in respect of the Subordinate Obligations.
5. Subrogation. Subject to the payment in full of all Obligations,
Subsidiary shall be subrogated to the extent of the payments or distributions
made to Banks or Administrative Agent for the benefit of Banks pursuant to the
provisions of any document, instrument or agreement evidencing or otherwise
pertaining to the Subordinate Obligations (and pursuant to this Agreement) to
the rights of Banks to receive payments or distributions of cash, property or
securities applicable to the Obligations until the Subordinate Obligations
shall be paid in full. For purposes of such subrogation, no payments or
distributions to Banks (or to Administrative Agent on behalf of Banks) of any
cash, property or securities to which Subsidiary would be entitled except for
the provisions of this Agreement and no payments over pursuant to the
provisions of this Agreement to Banks (or to Administrative Agent on behalf of
Banks) by Subsidiary shall, as between either Borrower or its creditors other
than Banks and Subsidiaries, be deemed to be a payment or distribution by such
Borrower to or on account of the Subordinate Obligations.
6. Parties in Interest. The provisions of this Agreement are intended
solely for the purpose of defining the relative rights of Subsidiary, on the
one hand, and Administrative Agent and Banks, on the other hand; provided that
this Agreement shall inure to the benefit of the successors and assigns of
Administrative Agent and Banks, including, without limitation, any subsequent
holder of all or any part of the Obligations. Nothing contained in this
Agreement is intended to or shall impair, as between either Borrower, its
creditors other than Subsidiary on the one hand and Administrative Agent and
Banks on the other hand, and their successors and assigns (including, without
limitation, any subsequent holder of all or any part of the Obligations), the
obligation of such Borrower, which is absolute and unconditional, to pay to
Subsidiary the Subordinate Obligations as and when the same shall become due
and payable in accordance with their terms. Nothing in this Agreement is
intended to or shall affect the relative rights against Borrowers and
Subsidiary on the one hand and creditors of Borrowers other than
Administrative Agent and Banks on the other hand, and their successors and
assigns (including, without limitation, any subsequent holder of all or any
part of the Obligations).
7. Rights Not Impaired. No right of Administrative Agent or any Bank to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of either
Borrower or by any act or failure to act, in good faith, by Administrative
Agent or any Bank, or by any noncompliance by either Borrower or Subsidiary
with the terms, provisions and covenants of this Agreement, regardless of any
knowledge thereof Administrative Agent or any Bank may have or be otherwise
charged with.
8. Disgorged Payments. To the extent any payment of Obligations
(whether by or on behalf of either Borrower, as proceeds of security or
enforcement of any right of set off or otherwise) is declared to be fraudulent
or preferential, set aside or required to be paid to a trustee, receiver or
other similar party under any applicable bankruptcy or insolvency law, then,
if such payment is recovered by, or paid over to, such trustee, receiver or
other similar party, the Obligations or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
9. Modifications and Amendments to Obligations. Banks may, without
notice to Subsidiary, at any time, in their sole discretion, renew, extend,
amend, restructure, waive, compromise or otherwise change the terms of the
Obligations, the Credit Agreement and the other Loan Papers and release any
obligor on or collateral for the Obligations without in any way altering or
affecting any of the rights of Administrative Agent and Banks under this
Agreement.
10. Payments Held in Trust. If, notwithstanding the provisions hereof,
any payment or distribution of any character (whether in cash, securities or
other property) or any security shall be received by Subsidiary at any time
that payment to or receipt by Subsidiary is prohibited hereunder, Subsidiary
shall hold all payments received in contravention of the terms hereof in trust
for the benefit of, and shall immediately pay the same over or deliver or
transfer the same to, Administrative Agent for the benefit of Banks for
application to the Obligations until all Obligations have been paid in full.
11. Legend. Subsidiary shall cause each promissory note, bond or other
instrument evidencing all or any part of the Subordinate Obligations to be
inscribed with a legend substantially in form and substance as follows:
THE RIGHTS, TITLE AND INTERESTS OF ANY HOLDER OF THIS INSTRUMENT ARE
SECONDARY, SUBORDINATE AND INFERIOR TO THE RIGHTS, TITLE AND INTERESTS OF THE
HOLDERS OF THE "OBLIGATIONS" UNDER AND AS DEFINED IN THAT CERTAIN CREDIT
AGREEMENT DATED AS OF AUGUST __, 1996, BY AND AMONG TRITON ENERGY CORPORATION,
TRITON ENERGY LIMITED, NATIONSBANK OF TEXAS, N.A. AS ADMINISTRATIVE AGENT,
BARCLAYS BANK PLC, AS DOCUMENTARY AGENT, MEESPIERSON N.V. AND THE CHASE
MANHATTAN BANK AS CO-AGENTS AND CERTAIN FINANCIAL INSTITUTIONS FROM TIME TO
TIME PARTIES THERETO AS "BANKS," AS THE SAME MAY BE MODIFIED, AMENDED,
RENEWED, EXTENDED, RESTATED OR REPLACED FROM TIME TO TIME
12. Continuing Agreement. This is a continuing Agreement and will
remain in full force and effect until all of the Obligations have been fully
paid, performed and satisfied and until all financing agreements among Agents,
Banks and Borrowers have been terminated. In the event following such
termination and payment in full, any payment of the Obligations is rescinded
or must otherwise be returned by Administrative Agent or any Bank (including
under circumstances contemplated by Section 8 hereof), this Agreement will
be deemed to be reinstated.
13. Assignment of Subordinate Obligations Prohibited. Subsidiary shall
not assign, syndicate, participate to any other person, pledge, encumber or
subordinate all or any part of the Subordinate Obligations except to any other
Subsidiary of TEL and only if the assignee assumes all of Subsidiary's rights
under this Agreement.
14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS AND THE FEDERAL
LAWS OF THE UNITED STATES OF AMERICA.
15. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be given, if to Administrative Agent,
any Bank or either Borrower, at the address or telecopy number set forth in
the Credit Agreement, and if given to Subsidiary, at their address or telecopy
number set forth on the signature pages of this Agreement (or in either case,
at such other address or telecopy number as such party may hereafter specify
for the purpose by notice to Administrative Agent, Borrowers, Subsidiary and
each Bank). Each such notice, request or other communication shall be
effective (a) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 15 and the appropriate answerback
is received or receipt is otherwise confirmed, (b) if given by mail, three (3)
Domestic Business Days after deposit in the mails with first class postage
prepaid, addressed as aforesaid or (c) if given by any other means, when
delivered at the address specified in this Section 15.
16. Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts, each of which for all purposes is to be deemed an
original, and all of which constitute collectively, one Agreement; but in
making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart. It is not necessary that each
party hereto execute the same counterpart so long as identical counterparts
are executed by each such party hereto.
17. No Waiver. No course of dealing between or among Administrative
Agent, Banks, Subsidiary and Borrowers, nor any failure to exercise, nor any
delay in exercising on the part of Administrative Agent or Banks of any right
hereunder or under the Credit Agreement or the other Loan Papers shall operate
as a waiver hereof or thereof; nor shall any single or partial exercise of any
right hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right.
18. COMPLETE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
COLLECTIVELY REPRESENT THE FINAL AGREEMENT BY AND AMONG BANKS, AGENTS AND
SUBSIDIARY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF BANKS, AGENTS AND SUBSIDIARY. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN BANKS, AGENT AND SUBSIDIARY.
19. WAIVER OF JURY TRIAL. SUBSIDIARY, AGENTS AND BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers on the day and year
first above written.
SUBSIDIARY:
[NAME OF TEL/TEC SUBSIDIARY]
a _______________ corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Address for Notice:
_________________________________________
_________________________________________
_________________________________________
Attn: ___________________________________
Telecopy No.:_____________________________
BANKS:
NATIONSBANK OF TEXAS, N.A.
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
BARCLAYS BANK PLC
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
MEESPIERSON N.V.
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
THE CHASE MANHATTAN BANK
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
SOCIETE GENERALE, SOUTHWEST AGENCY
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, N.A.
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Borrowers have executed this Agreement in the spaces indicated below for
purposes of evidencing their agreement to comply with each and every covenant
contained in this Agreement applicable to Borrowers.
BORROWERS:
TRITON ENERGY LIMITED,
a Cayman Islands company
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
TRITON ENERGY CORPORATION,
a Delaware corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
EXHIBIT C
GUARANTY
THIS GUARANTY (this "Guaranty") is dated as of the ___ day of ____,
199__, by Triton Energy Corporation, a Delaware corporation ("Guarantor"),
pursuant to Section 2.12 of that certain Credit Agreement dated as of August
_____, 1996, by and among Triton Energy Limited, a Cayman Islands company
("TEL"), Guarantor, NationsBank of Texas, N.A., as Administrative Agent,
Barclays Bank PLC, as Documentary Agent, MeesPierson N.V. and The Chase
Manhattan Bank, as Co-Agents, and the financial institutions described on
Schedule 1 thereto as Banks (the "Credit Agreement"). Unless otherwise
defined herein or the context clearly requires otherwise, all terms used
herein with their initial letter capitalized shall have the meaning given such
terms in the Credit Agreement. This Guaranty is executed by Guarantor in
favor of Banks and each of their successors and permitted Assignees (Banks and
each of their successors and permitted Assignees are collectively referred to
herein as "Noteholders").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, Banks have (i) made a
revolving credit loan to TEL, and (ii) participated in and agreed to issue and
participate in Letters of Credit issued on behalf of TEL and its Subsidiaries;
WHEREAS, pursuant to Section 2.13 of the Credit Agreement, TEC may, at
the request of Borrowers, be recharacterized as a guarantor of the Obligations
rather than a Borrower under the Credit Agreement and other Loan Papers (the
"Recharacterization");
WHEREAS, to evidence and effect the Recharacterization, TEL, Guarantor,
Banks and Agents have entered into that certain [Amendment to Credit
Agreement] (the "Amendment") of even date herewith;
WHEREAS, it is a condition precedent to the Recharacterization of
Guarantor as a guarantor pursuant to Section 2.13 of the Credit Agreement,
that Guarantor execute and deliver this Guaranty; and
WHEREAS, Guarantor has determined that valuable benefits will be derived
by it as a result of the Recharacterization.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confessed, Guarantor hereby covenants and
agrees as follows:
1. Guarantor hereby absolutely and unconditionally guarantees the
prompt, complete and full payment when due, no matter how such shall become
due, of the Obligations, and further guarantees that TEL will properly and
timely perform the Obligations. Notwithstanding any contrary provision in
this Guaranty, however, Guarantor's maximum liability under this Guaranty is
limited, to the extent, if any, required so that its liability is not subject
to avoidance under applicable Debtor Relief Laws (as such term is defined in
Paragraph 8 hereof).
2. If Guarantor is or becomes liable for any indebtedness owing by
TEL to Noteholders by endorsement or otherwise than under this Guaranty, such
liability shall not be in any manner impaired or affected hereby, and the
rights of Noteholders hereunder shall be cumulative of any and all other
rights that Noteholders may ever have against Guarantor. The exercise by
Noteholders of any right or remedy hereunder or under any other instrument, at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
3. In the event of default by TEL in payment of the Obligations, or
any part thereof, when such Obligations become due, either by their terms or
as the result of the exercise of any power to accelerate, Guarantor shall, on
demand, and without further notice of dishonor and without any notice having
been given to Guarantor previous to such demand of the acceptance by
Noteholders of this Guaranty, and without any notice having been given to such
Guarantor previous to such demand of the creating or incurring of such
Obligations, pay the amount due thereon to Noteholders at Administrative
Agent's office as set forth in the Credit Agreement, and it shall not be
necessary for any Noteholder, in order to enforce such payment by Guarantor,
first, to institute suit or exhaust its remedies against TEL or others liable
on such Obligations, to have TEL joined with Guarantor in any suit brought
under this Guaranty or to enforce their rights against any security which
shall ever have been given to secure such indebtedness; provided, however,
that in the event Noteholders elect to enforce and/or exercise any remedies
they may possess with respect to any security for the Obligations prior to
demanding payment from Guarantor, Guarantor shall nevertheless be obligated
hereunder for any and all sums still owing to Noteholders on the Obligations
and not repaid or recovered incident to the exercise of such remedies.
4. Notice to Guarantor of the acceptance of this Guaranty and of the
making, renewing or assignment of the Obligations and each item thereof, are
hereby expressly waived by Guarantor.
5. Each payment on the Obligations shall be deemed to have been made
by TEL unless express written notice is given to Administrative Agent at the
time of such payment that such payment is made by Guarantor as specified in
such notice.
6. If all or any part of the Obligations at any time are secured,
Guarantor agrees that Noteholders may at any time and from time to time, at
their discretion and with or without valuable consideration, allow
substitution or withdrawal of collateral or other security and release
collateral or other security or compromise or settle any amount due or owing
under the Credit Agreement or amend or modify in whole or in part the Credit
Agreement or any Loan Papers executed in connection with same without
impairing or diminishing the obligations of Guarantor hereunder. Guarantor
further agrees that if TEL executes in favor of Noteholders any collateral
agreement, mortgage or other security instrument, the exercise by Noteholders
of any right or remedy thereby conferred on Noteholders shall be wholly
discretionary with Noteholders, and that the exercise or failure to exercise
any such right or remedy shall in no way impair or diminish the obligation of
Guarantor hereunder. Guarantor further agrees that neither Noteholders nor
any Agent shall be liable for their failure to use diligence in the collection
of the Obligations or in preserving the liability of any person liable for the
Obligations, and Guarantor hereby waives presentment for payment, notice of
nonpayment, protest and notice thereof (including, notice of acceleration),
and diligence in bringing suits against any Person liable on the Obligations,
or any part thereof.
7. Guarantor agrees that Noteholders, in their discretion, may (i)
bring suit against all guarantors (including, without limitation, Guarantor
hereunder) of the Obligations jointly and severally or against any one or more
of them, (ii) compound or settle with any one or more of such guarantors for
such consideration as the Noteholders may deem proper, and (iii) release one
or more of such guarantors from liability hereunder, and that no such action
shall impair the rights of Noteholders to collect the Obligations (or the
unpaid balance thereof) from other such guarantors of the Obligations, or any
of them, not so sued, settled with or released. Guarantor agrees, however,
that nothing contained in this paragraph, and no action by Noteholders
permitted under this paragraph, shall in any way affect or impair the rights
or obligations of such guarantors among themselves.
8. Guarantor represents and warrants to Noteholders that (i)
Guarantor is a corporation duly organized and validly existing under the laws
of the jurisdiction of its incorporation or formation, (ii) Guarantor
possesses all requisite authority and power to authorize, execute, deliver and
comply with the terms of this Guaranty, (iii) this Guaranty has been duly
authorized and approved by all necessary action on the part of Guarantor and
constitutes a valid and binding obligation of Guarantor enforceable in
accordance with its terms, except as the enforcement thereof may be limited by
applicable Debtor Relief Laws, and (iv) no approval or consent of any court or
governmental entity is required for the authorization, execution, delivery or
compliance with this Guaranty which has not been obtained (and copies thereof
delivered to Noteholders). As used in Paragraph 1 and in this Paragraph
8, "Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments or similar debtor relief laws from time to time in
effect affecting the rights of creditors generally.
9. Guarantor covenants and agrees that until the Obligations are paid
and performed in full, it will at all times perform and observe each and every
covenant and agreement applicable to TEL contained in the Credit Agreement and
the other Loan Papers.
10. This Guaranty is for the benefit of the Noteholders, their
successors and assigns, and in the event of an assignment by Noteholders (or
their successors or assigns) of the Obligations, or any part thereof, the
rights and benefits hereunder, to the extent applicable to the Obligations so
assigned, may be transferred with such Obligations. This Guaranty is binding
upon Guarantor and its successors and assigns.
11. No modification, consent, amendment or waiver of any provision of
this Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by Required Banks,
and then shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on Guarantor in any case shall, of
itself, entitle Guarantor to any other or further notice or demand in similar
or other circumstances. No delay or omission by Noteholders in exercising any
power or right hereunder shall impair any such right or power or be construed
as a waiver thereof or any acquiescence therein, nor shall any single or
partial exercise of any such power preclude other or further exercise thereof,
or the exercise of any other right or power hereunder. All rights and
remedies of Noteholders hereunder are cumulative of each other and of every
other right or remedy which Noteholders may otherwise have at law or in equity
or under any other contract or document, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
12. No provision herein or in any promissory note, instrument or any
other Loan Paper executed by TEL or Guarantor evidencing the Obligations shall
require the payment or permit the collection of interest in excess of the
Maximum Lawful Rate. If any excess of interest in such respect is provided
for herein or in any such promissory note, instrument, or any other Loan
Paper, the provisions of this paragraph shall govern, and neither TEL nor
Guarantor shall be obligated to pay the amount of such interest to the extent
that it is in excess of the amount permitted by law. The intention of the
parties being to conform strictly to any applicable federal or state usury
laws now in force, all promissory notes, instruments and other Loan Papers
executed by TEL or Guarantor evidencing the Obligations shall be held subject
to reduction to the amount allowed under said usury laws as now or hereafter
construed by the courts having jurisdiction.
13. If Guarantor should breach or fail to perform any provision of
this Guaranty, Guarantor agrees to pay Noteholders all costs and expenses
(including court costs and reasonable attorneys fees) incurred by Noteholders
in the enforcement hereof.
14. (a) The liability of Guarantor under this Guaranty shall in no
manner be impaired, affected or released by the insolvency, bankruptcy, making
of an assignment for the benefit of creditors, arrangement, compensation,
composition or readjustment of TEL, or any proceedings affecting the status,
existence or assets of TEL or other similar proceedings instituted by or
against TEL and affecting the assets of TEL.
(b) Guarantor acknowledges and agrees that any interest on any
portion of the Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Obligations if said proceedings had not been commenced) shall
be included in the Obligations because it is the intention of Guarantor and
Agent that the Obligations which are guaranteed by Guarantor pursuant to this
Guaranty should be determined without regard to any rule of law or order which
may relieve TEL of any portion of such Obligations. Guarantor will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar person to pay Administrative Agent, or allow
the claim of Administrative Agent in respect of, any such interest accruing
after the date on which such proceeding is commenced.
(c) In the event that all or any portion of the Obligations are
paid by TEL, the obligations of Guarantor hereunder shall continue and remain
in full force and effect or be reinstated, as the case may be, in the event
that all or any part of such payment(s) are rescinded or recovered directly or
indirectly from Administrative Agent or any Bank as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or
recovered shall constitute Obligations for all purposes under this Guaranty.
15. Guarantor understands and agrees that any amounts of Guarantor on
account with any Noteholder may be offset to satisfy the obligations of
Guarantor hereunder.
16. Guarantor hereby subordinates and makes inferior any and all
indebtedness now or at any time hereafter owed by TEL to Guarantor to the
Obligations evidenced by the Credit Agreement and agrees after the occurrence
of a Default under the Credit Agreement, or any event which with notice, lapse
of time, or both, would constitute a Default under the Credit Agreement, not
to permit TEL to repay, or to accept payment from TEL of, such indebtedness or
any part thereof without the prior written consent of Noteholders.
17. Guarantor hereby waives any and all rights of subrogation to
which Guarantor may otherwise be entitled against TEL, or any other guarantor
of the Obligations, as a result of any payment made by Guarantor pursuant to
this Guaranty.
18. As of the date hereof, the fair saleable value of the property of
Guarantor is greater than the total amount of liabilities (including
contingent and unliquidated liabilities) of Guarantor, and Guarantor is able
to pay all of its liabilities as such liabilities mature and Guarantor does
not have unreasonably small capital within the meaning of ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended. In computing the amount of contingent or
liquidated liabilities, such liabilities have been computed at the amount
which, in light of all the facts and circumstances existing as of the date
hereof, represents the amount that can reasonably be expected to become an
actual or matured liability.
19. If any provision of this Guaranty is held to be illegal, invalid,
or unenforceable, such provision shall be fully severable; this Guaranty shall
be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part hereof; and the remaining provisions
hereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision
there shall be added automatically as a part of this Guaranty a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may
be possible and be legal, valid and enforceable.
20. (a) Except to the extent required for the exercise of the
remedies provided in the other security instruments, Guarantor hereby
irrevocably submits to the nonexclusive jurisdiction of any Texas state or
federal court over any action or proceeding arising out of or relating to this
Guaranty or any other Loan Paper, and Guarantor hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in such Texas state or federal court. Guarantor hereby irrevocably waives, to
the fullest extent permitted by Law, any objection which it may now or
hereafter have to the laying of venue of any Litigation arising out of or in
connection with this Guaranty or any of the Loan Papers brought in district
courts of Dallas County, Texas, or in the United States District Court for the
Northern District of Texas, Dallas Division. Guarantor hereby irrevocably
waives any claim that any Litigation brought in any such court has been
brought in an inconvenient forum. Guarantor hereby irrevocably consents to
the service of process out of any of the aforementioned courts in any such
Litigation by the mailing of copies thereof by certified mail, return receipt
requested, postage prepaid, to Guarantor's office at
__________________________________________. Guarantor irrevocably agrees that
any legal proceeding against Noteholders shall be brought in the district
courts of Dallas County, Texas, or in the United States District Court for the
Northern District of Texas, Dallas Division. Nothing herein shall affect the
right of Noteholders to commence legal proceedings or otherwise proceed
against Guarantor in any jurisdiction or to serve process in any manner
permitted by applicable law. As used herein, the term "Litigation" means
any proceeding, claim, lawsuit or investigation (i) conducted or threatened by
or before any court or governmental department, commission, board, bureau,
agency or instrumentality of the United States or of any state, commonwealth,
nation, territory, possession, county, parish, or municipality, whether now or
hereafter constituted or existing, or (ii) pending before any public or
private arbitration board or panel.
(b) Nothing in this Paragraph 20 shall affect any right of the
Noteholders to serve legal process in any other manner permitted by law or
affect the right of any Noteholder to bring any action or proceeding against
Guarantor in the courts of any other jurisdictions.
(c) To the extent that Guarantor has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Guarantor hereby irrevocably waives such immunity in respect of its
obligations under this Guaranty and the other Loan Papers.
21. THIS GUARANTY AND THE OTHER LOAN PAPERS COLLECTIVELY REPRESENT
THE FINAL AGREEMENT BY AND AMONG NOTEHOLDERS, AGENTS, TEL AND GUARANTOR AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE NOTEHOLDERS, AGENTS, TEL AND GUARANTOR. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN NOTEHOLDERS, AGENTS, TEL AND GUARANTOR.
22. GUARANTOR, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, AGENTS AND
NOTEHOLDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN
PAPERS AND FOR ANY COUNTERCLAIM THEREIN.
23. THIS GUARANTY AND THE OTHER LOAN PAPERS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS AND
THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA WITHOUT REFERENCE TO ITS
CHOICE OF LAW PROVISIONS.
EXECUTED and effective as of the date first above written.
GUARANTOR:
TRITON ENERGY CORPORATION
By:
▇▇▇▇▇ ▇▇▇▇,
Vice President
EXHIBIT D
REQUEST FOR BORROWING
Reference is made to that certain Credit Agreement dated as of August __,
1996, (as from time to time amended, the "Agreement") by and among Triton
Energy Limited, a Cayman Islands company, and Triton Energy Corporation, a
Delaware corporation, as Borrowers (collectively, "Borrowers"), NationsBank
of Texas, N.A., as Administrative Agent, Barclays Bank PLC, as Documentary
Agent, MeesPierson N.V. and The Chase Manhattan Bank, as Co-Agents, and
certain Banks as named and defined therein. Terms which are defined in the
Agreement and which are used but not defined herein are used herein with the
meanings given them in the Agreement. Pursuant to the terms of the Agreement,
Borrowers hereby request a Borrowing in the amount of $_____________ to be
advanced on,.
Borrowers request that the Borrowing to be made hereunder be [AN ADJUSTED
BASE RATE BORROWING] [A EURODOLLAR BORROWING] and, in the case of a Eurodollar
Borrowing, with an Interest Period as set forth below:
Type of Borrowing Aggregate Amount Interest Period
___________________ ________________ _______________
___________________ ________________ _______________
___________________ ________________ _______________
Each Borrower and the Authorized Officer of each Borrower signing this
instrument hereby certify that:
(a) Such officer is the duly elected, qualified and acting officer
of such Borrower as indicated below such officer's signature hereto.
(b) The representations and warranties of each Borrower set forth
in the Agreement and the Loan Papers are true and correct on and as of the
date hereof, and will be true and correct on the date the Borrowing requested
hereby is to be made.
(c) There does not exist on the date hereof, any condition or event
which constitutes a Default or Event of Default, nor will any Default or Event
of Default exist upon Borrowers' receipt and application of the Borrowing
requested hereby.
(d) No event has occurred and no condition exists which has had or
which is reasonably expected to have a Material Adverse Effect.
IN WITNESS WHEREOF, this instrument is executed as of,
19.
TRITON ENERGY LIMITED,
a Cayman Islands company
By: ___________________________________
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President and
Chief Financial Officer
TRITON ENERGY CORPORATION,
a Delaware corporation
By: ___________________________________
▇▇▇▇▇ ▇▇▇▇,
Vice President
EXHIBIT E
REQUEST FOR LETTER OF CREDIT
Reference is made to that certain Credit Agreement dated as of August __,
1996 (as from time to time amended, the "Agreement"), by and among Triton
Energy Limited, a Cayman Islands company ("TEL"), and Triton Energy
Corporation, a Delaware corporation ("TEC"), as Borrowers (collectively,
"Borrowers"), NationsBank of Texas, N.A., as Administrative Agent
("Administrative Agent"), Barclays Bank PLC, as Documentary Agent,
MeesPierson N.V. and The Chase Manhattan Bank, as Co-Agents, and certain other
Banks as named and defined therein. Terms which are defined in the Agreement
and which are used but not defined herein are used herein with the meanings
given them in the Agreement.
Pursuant to the terms of the Agreement, Borrowers hereby request
____________ ("Issuer") to issue a Letter of Credit for the account of [TEC]
[TEL] or _______________________, a Subsidiary of [TEC] [TEL], as follows:
Type of Commitment:
Requested Amount $
Requested Date of Issuance
Requested Expiration Date
Summary of Terms
(provide a brief description
of conditions under which the
drafts under such Letter of
Credit are to be available)
Beneficiary (Name/Address)
Account Party
Such Letter of Credit is more particularly described in the Letter of
Credit Application and Agreement of Issuer which is attached hereto and which
has been duly executed and delivered by each Borrower and _______________.
Each Borrower and the Authorized Officer of each Borrower signing this
instrument hereby certify that:
(a) Such officer is the duly elected, qualified and acting officer of
such Borrower as indicated below such officer's signature hereto.
(b) The representations and warranties of each Borrower set forth in
the Agreement and the other Loan Papers are true and correct on and as of the
date hereof, and will be true and correct on the date the Letter of Credit
requested hereby is to be issued.
(c) There does not exist on the date hereof any condition or event
which constitutes a Default or Event of Default, nor will any Default or Event
of Default exist upon the issuance of the Letter of Credit requested hereby.
(d) No event has occurred and no condition exists which has had or
which is reasonably expected to have a Material Adverse Effect.
IN WITNESS WHEREOF, this instrument is executed as of ________________,
19__.
TRITON ENERGY LIMITED,
a Cayman Islands company
By: ___________________________________
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President and
Chief Financial Officer
TRITON ENERGY CORPORATION,
a Delaware corporation
By: ___________________________________
▇▇▇▇▇ ▇▇▇▇,
Vice President
EXHIBIT F
ROLLOVER NOTICE
Reference is made to that certain Credit Agreement dated as of August __,
1996 (as from time to time amended, the "Agreement"), by and among Triton
Energy Limited, a Cayman Islands company, and Triton Energy Corporation, a
Delaware corporation, as Borrowers ("Borrowers"), NationsBank of Texas,
N.A., as Administrative Agent, Barclays Bank PLC, as Documentary Agent,
MeesPierson N.V. and The Chase Manhattan Bank, as Co-Agents, and certain Banks
as named and defined therein. Terms which are defined in the Agreement and
which are used but not defined herein are used herein with the meanings given
them in the Agreement.
- Reference is hereby made to the existing Eurodollar Tranche
outstanding under the Loan in the amount of $_______________ which is subject
to an Interest Period expiring on _________________, 199__. Borrowers hereby
request that on the expiration of such Interest Period the portion of the
principal of such Loan which is subject to such Tranche be made the subject of
__ an Adjusted Base Rate Tranche or __ a Eurodollar Tranche having an Interest
Period of ____ months.
- Borrowers hereby request that on __________________, 199__, a
portion of the principal of the Loan in the amount of $_______________ which
is currently the subject of an Adjusted Base Rate Tranche be made the subject
of a Eurodollar Tranche having an Interest Period of _____ months.
Each Borrower and the Authorized Officer of each Borrower signing this
instrument hereby certify that:
(a) Such officer is the duly elected, qualified and acting officer of
such Borrower as indicated below such officer's signature hereto;
(b) The representations and warranties of each Borrower set forth in
the Agreement and the Loan Papers are true and correct on and as of the date
hereof, and will be true and correct on the date the action requested herein
is taken;
(c) There does not exist on the date hereof any condition or event
which constitutes a Default or Event of Default, nor will any Default or Event
of Default exist upon the date the action requested herein is taken; and
(d) No event has occurred and no condition exists which has had or
which is reasonably expected to have a Material Adverse Effect.
IN WITNESS WHEREOF, this instrument is executed as of, 19.
TRITON ENERGY LIMITED,
a Cayman Islands company
By:
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President and
Chief Financial Officer
TRITON ENERGY CORPORATION,
a Delaware corporation
By:
▇▇▇▇▇ ▇▇▇▇,
Vice President
EXHIBIT G
SOLVENCY CERTIFICATE
This Solvency Certificate ("Certificate") is executed and delivered as
of the 30th day of August, 1996, by ▇▇▇▇▇ ▇▇▇▇, not in his individual
capacity, but solely in his capacity as Senior Vice President and Chief
Financial Officer of Triton Energy Limited, a Cayman Islands company
("TEL"), and Vice President of Triton Energy Corporation, a Delaware
corporation ("TEC"). This Certificate is delivered pursuant to Section
5.1(a)(vii) of that certain Credit Agreement dated as of August 30, 1996 by
and among TEL, TEC, NationsBank of Texas, N.A., as Administrative Agent,
Barclays Bank PLC, as Documentary Agent, MeesPierson N.V. and The Chase
Manhattan Bank, as Co-Agents, and the financial institutions set forth on
Schedule 1 thereto as Banks (the "Credit Agreement") (unless otherwise
defined herein, capitalized terms used herein have the meanings assigned to
them in the Credit Agreement). In connection with my execution and delivery
of this certificate I have reviewed and relied upon that certain Appraisal
Report prepared as of December 31, 1995 by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ setting
forth an engineering and economic analysis of the Colombian Assets.
In order to induce Agents and Banks to enter into the Credit Agreement
and extend credit thereunder, I hereby certify to Agents and Banks as follows:
1. In my capacity as Senior Vice President and Chief Financial
Officer of TEL and Vice President of TEC, I am the highest ranking executive
officer of each Borrower with responsibility for accounting and financial
reporting, and as such, I am familiar with the assets, liabilities (including,
without limitation, contingent liabilities) and business operations of
Borrowers and their Subsidiaries. The financial statements of TEL, TEC, TIOC
and TCI referenced in Sections 6.4(a), (b) and (c) of the Credit Agreement
have been prepared under my supervision and have been reviewed by me. Such
financial statements have been prepared in accordance with GAAP (subject to
the absence of footnotes and the effects of year end audit adjustments in the
case of unaudited and interim financial statements) and fairly present the
consolidated financial position of TEC, TEL, TIOC and TCI and their respective
Consolidated Subsidiaries as of the dates and for the periods covered thereby.
2. The Projections have been prepared under my supervision and have
been reviewed by me. The Projections were prepared in conformity with
Borrowers' standard practices and the assumptions upon which they were based
do not deviate in any material respect from those used by Borrowers for their
internal financial planning purposes.
3. For purposes of delivering this certificate, I have:
(a) consulted with other officers of each Borrower and their
respective Subsidiaries responsible for financial and accounting functions
concerning contingent liabilities of each Borrower and their respective
Subsidiaries; and
(b) made such other investigations and inquiries as I have
deemed appropriate.
4. Based upon the foregoing, I have concluded, as of the date hereof,
and after giving effect to the incurrence of the Obligations by Borrowers in
an amount equal to the Total Commitment, and regardless of whether the
proceeds of the Borrowings and Letters of Credit are utilized by TEC and its
Subsidiaries or TEL and its Subsidiaries (other than TEC and its Subsidiaries)
as follows:
(i) each of the Borrowers is solvent, as a result of, among other
things, the following:
(a) the Fair Value and Present Fair Saleable Value of the assets
of each Borrower exceeds its stated and contingent liabilities;
(b) the Fair Value and Present Fair Saleable Value of the assets
of each Borrower exceeds the probable liability on its debts (including
contingent liabilities) as such debts become absolute and mature; and
(c) each Borrower will be able to pay its debts as they mature;
(ii) neither Borrower is engaged in businesses or transactions, or
about to engage in businesses or transactions, for which its property
constitutes unreasonably small capital; and
(iii) neither Borrower intends to incur, or believes that it will
incur, debts that will be beyond its ability to pay as such debts mature.
5. Neither Borrower is entering into the arrangements contemplated by
the Credit Agreement or the other Loan Papers or intends to make any transfer
or incur any obligations thereunder, with actual intent to hinder, delay or
defraud either present or future creditors.
6. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value" means the amount at which an entity's
aggregate assets would change hands between a willing buyer and a willing
seller, each having reasonable knowledge of the relevant facts, with neither
being under any compulsion to act, with equity to both.
(b) "Present Fair Saleable Value" means the amount that may be
realized if an entity's aggregate assets are sold with reasonable promptness
in an arm's-length transaction under present conditions for the sale of
comparable business enterprises.
(c) "will be able to pay its debts as they mature" means that
the Fair Value and Present Fair Saleable Value of an entity's assets would
exceed its stated liabilities and contingent liabilities, and the Fair Value
and Present Fair Saleable Value of its current assets would exceed its current
stated liabilities and current contingent liabilities.
Executed and delivered as of the day and year first above written.
Triton Energy Limited
By:
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President
Chief Financial Officer
Triton Energy Corporation
By:
▇▇▇▇▇ ▇▇▇▇,
Vice President
EXHIBIT H
COMPLIANCE CERTIFICATE
Reference is made to that certain Credit Agreement dated as of August __,
1996, by and among Triton Energy Limited, a Cayman Islands company ("TEL"),
and Triton Energy Corporation, a Delaware corporation ("TEC"), as Borrowers
(collectively referred to hereinafter as "Borrowers"), NationsBank of Texas,
N.A., as Administrative Agent, Barclays Bank PLC, as Documentary Agent,
MeesPierson N.V. and The Chase Manhattan Bank, as Co-Agents, and certain Banks
designated and defined therein (as from time to time amended, the "Credit
Agreement"). Terms which are defined in the Credit Agreement and which are
used but not defined herein are used herein with the meanings given them in
the Credit Agreement. Pursuant to Section 7.1(d) of the Credit Agreement,
the undersigned hereby certifies that the information set forth below and on
any attachments to this Certificate is true, correct and complete as of the
date of this Certificate:
(i) Attached hereto as Exhibit A are [the consolidated and
consolidating financial statements of TEL] [and] [the consolidated financial
statements of [TEL] TEC, TIOC and TCI and their respective Consolidated
Subsidiaries] delivered pursuant to Section 7.1[(a)] [(b)] [(c)] of the
Credit Agreement for the [Fiscal Year] [Fiscal Quarter] ended ______________,
19__ (the "Subject Period"). Such financial statements were prepared in
accordance with GAAP and on a basis consistent with all prior financial
statements for the Person covered thereby previously delivered to Banks, and
fairly present the consolidated [, and consolidating in the case of TEL,]
business and financial condition of each such Person as of the date of the
delivery of such financial statements.
(ii) There does not exist on the date hereof, and there did not
exist on the date of such financial statements, any condition or event which
constitutes a Default or Event of Default.
(iii) The representations and warranties of each Borrower set
forth in the Credit Agreement and the other Loan Papers are true and correct
on and as of the date hereof, and were true and correct as of the date of such
financial statements.
(iv) A review of the activities of Borrowers during the Subject
Period has been made under my supervision with a view to determining whether,
during the Subject Period, each Borrower has kept, observed, performed and
fulfilled all of its obligations under the Loan Papers, and during the Subject
Period, each Borrower kept, observed, performed and fulfilled each and every
covenant and condition to the Loan Papers (except for the deviations, if any,
set forth on the exhibits annexed hereto).
(v) As of the date of such financial statements, the aggregate
total Debt of TEL and its Subsidiaries is $_____________. Attached hereto as
Exhibit B is a calculation of such Debt, including, without limitation, a
calculation of Debt under Regulated Leases and a calculation of Net Hedge
Transaction Expense.
(vi) As of the date of such financial statements, the aggregate
total Advance Payment Contract Liabilities of TEL and its Subsidiaries is
$___________.
(vii) As of the date of such financial statements, TEL's ratio
of Consolidated Current Assets to Consolidated Current Liabilities is _______
to 1, as evidenced by the following calculations:
(a) Consolidated current assets $______________
(b) Prepaid expenses $______________
(c) Assets held for resale (other $______________
than marketable securities)
(d) Remainder of (a) minus (b) $______________
minus (c)
(e) Total Commitment $______________
(f) Outstanding Credit $______________
(g) Availability (Remainder of (e) $______________
minus (f))
(h) Consolidated Current Assets (Sum $______________
of (d) and (g) )
(i) Consolidated current liabilities $______________
(j) Current portion of Debt under 1997 $______________
Notes and 9x% Notes
(k) Consolidated Current Liabilities $______________
(Remainder of (i) minus (j))
(l) Ratio of (h) to (k) _______ to _________
[[DURING INTERIM LEVERAGE TEST PERIOD AND FINAL LEVERAGE TEST
PERIOD](vii) As of the date of such financial statements and for the
period for which Consolidated EBITDAD is to be measured in accordance with
Section 8.1[(b)] [(c)] of the Agreement, TEL's [INTERIM] [FINAL] Leverage
Ratio is _______ to 1, as evidenced by the following calculations:
(a) Total Debt of TEL and its Subsidiaries $________________
(b) Total Advance Payment Contract Liability of
TEL and its Subsidiaries $________________
(c) Net Income $________________
(d) Income of any other Person which is not $________________
a cash distribution to TEL or its Consolidated
Subsidiaries
(e) Gains attributable to asset $________________
dispositions (not discontinued operations)
(f) To the extent not included in (d) and (e), $________________
any non-cash or nonrecurring income or gains
(g) After tax Non-cash or nonrecurring charges due $________________
to changes in accounting required by GAAP,
extraordinary items, discontinued operations
(h) Consolidated Net income (Remainder of (c) $________________
minus (d), minus (e), minus (f), minus (g))
(i) Any provision for (or less any benefit from) $________________
income or franchise Taxes included in
determining Consolidated Net Income
(j) Consolidated Net Interest Expense deducted $________________
in determining Consolidated Net Income
(k) Depreciation, depletion and amortization $________________
expense deducted in determining Consolidated
Net Income
(l) To the extent not included in (j) and (k), $________________
other non-cash charges deducted in determining
Consolidated Net Income
(m) Sum of (i), plus (j), plus (k), plus (l) $________________
(n) Revenue attributable to Advance Payments $________________
recognized and included in the calculation of
Consolidated Net Income
(o) Income Taxes accruing during such period $________________
in Colombia
(p) Consolidated EBITDAD (Sum of (h) plus (m), $________________
minus (n), minus (o))
(q) Ratio of (a) plus (b) to (p) _____ to
______]
(1) Annualized to the extent applicable in accordance with Section 8.1 [(b)]
[(c)] of the Agreement.
IN WITNESS WHEREOF, this instrument is executed as of __________, 199__.
Name:
Chief Financial Officer
[OR FINANCIAL OFFICER]
of Triton Energy Limited
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated
_____________________, 199__, among __________________________ ("Assignor")
and ______________________________ ("Assignee") and NationsBank of Texas,
N.A., as Administrative Agent for Banks ("Administrative Agent").
BACKGROUND.
A. Reference is made to that certain Credit Agreement dated as of
August ____, 1996 (as it may hereafter be amended or otherwise modified from
time to time, being referred to as the "Credit Agreement") among Triton
Energy Limited and Triton Energy Corporation, as Borrowers (collectively, the
"Borrowers"), Administrative Agent, Barclays Bank PLC, as Documentary Agent,
MeesPierson N.V. and The Chase Manhattan Bank, as Co-Agents, the financial
institutions parties thereto as Banks. Unless otherwise defined, terms are
used herein as defined in the Credit Agreement.
B. This Agreement is made with reference to the following facts:
(i) Assignor is a Bank under and as defined in the Credit
Agreement and, as such, presently holds a percentage of the rights and
obligations of Banks under the Credit Agreement.
(ii) As of the date hereof, the Total Commitment is $__________,
Assignor's Commitment is $______________, and Assignor's Commitment Percentage
is _______%.
(iii) On the terms and conditions set forth below, Assignor
desires to sell and assign to Assignee, and Assignee desires to purchase and
assume from Assignor, as of the Effective Date (as defined below) ___________
percent (_______%) (the "Assigned Percentage") of the Total Commitment (such
Assigned Percentage constitutes ________ percent (_______%) of Assignor's
Commitment.
AGREEMENT.
NOW, THEREFORE, Assignor and Assignee hereby agree as follows:
1. By this Agreement, and effective as of _____________, 199_ (which
must be at least five (5) Domestic Business Days after the execution and
delivery of this Agreement to each Borrower and each Agent for acceptance),
Assignor hereby sells and assigns to Assignee, without recourse and, except as
provided in paragraph 2 of this Agreement, without representation and
warranty, and Assignee hereby purchases and assumes from Assignor, Assignor's
rights and obligations under the Credit Agreement, to the extent of the
Assigned Percentage of the Loan, the Letter of Credit Exposure, and the
Commitment as in effect on the Effective Date.
2. Assignor (a) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (b) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, any other Loan Paper or any other instrument or document furnished
pursuant thereto, or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
any other Loan Paper or any other instrument or document furnished pursuant
thereto; and (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or any
Person or the performance or observance by any Borrower or any Person of any
of its obligations under the Loan Papers or any other instrument or document
furnished pursuant thereto.
3. Assignee (a) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered to Assignor pursuant to Section 7 of the Credit Agreement, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Agreement; (b) agrees
that it will, independently and without reliance upon any Agent, Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Credit Agreement and the other Loan Papers; (c)
appoints and authorizes any Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement and the other Loan
Papers as are delegated to such Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (d) agrees that it will perform
in accordance with their terms all of the obligations which, by the terms of
the Credit Agreement and the other Loan Papers, are required to be performed
by it as a Bank; (e) specifies, as its address for notice and Domestic
Lending Office and Eurodollar Lending Office, the offices set forth beneath
its name on the signature pages hereof, and (f) if Assignee is not organized
under the laws of the United States of America or one of its states, Assignee
(i) represents and warrants to Assignor, Administrative Agent and each
Borrower that (A) no Taxes are required to be withheld by any Agent or any
Borrower with respect to any payments to be made to Assignee in respect of the
Obligations and (B) Assignee has furnished to Administrative Agent and each
Borrower two (2) duly completed copies of either U.S. Internal Revenue Service
Form 4224, Form 1001, Form W-8, or other form acceptable to Administrative
Agent that entitles Assignee to exemption from U.S. federal withholding Tax on
all interest payments under the Loan Papers, (ii) covenants to (A) provide
Administrative Agent and each Borrower a new Form 4224, Form 1001, Form W-8,
or other form acceptable to Administrative Agent upon the expiration or
obsolescence of any previously delivered form according to applicable laws and
regulations, duly executed and completed by Assignee, and (B) comply from
time to time with all applicable laws and regulations with regard to the
withholding Tax exemption, and (iii) agrees that if any of the foregoing is
not true or the applicable forms are not provided, then any Borrower and
Administrative Agent (without duplication) may deduct and withhold from
interest payments under the Loan Papers any United States federal income Tax
at the maximum rate under the Code.
4. Each Borrower acknowledges its obligations under the Credit
Agreement, and agrees, within five (5) Domestic Business Days after receiving
an executed copy of this Agreement to execute and deliver to Administrative
Agent, in exchange for the Notes originally delivered to Assignor, new Notes
to the order of Assignor and Assignee in amounts equal to their respective
amounts of the Commitments.
5. As of the Effective Date, (a) Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Agreement, have the
rights and obligations of a Bank thereunder, (b) Assignor shall, to the
extent provided in this Agreement, relinquish its rights and be released from
its obligations under the Credit Agreement and other Loan Papers, and (c)
Assignor's Commitment Percentage shall be ______%, and Assignee's Commitment
Percentage shall be _____%.
6. From and after the Effective Date, Administrative Agent shall make
all payments under the Credit Agreement in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest,
fees and other amounts with respect thereto) to Assignee. Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Effective Date directly between themselves.
7. This Agreement shall not become effective until (a) counterparts
of this Agreement are executed and delivered by Assignor and Assignee to each
Borrower, each Agent and each Bank, (b) each Borrower, each Agent and each
Bank execute such counterparts, and (c) Administrative Agent receives a
processing fee of $3,000 from Assignor or Assignee.
8. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas, without reference to principles of
conflict of laws.
ASSIGNOR:
By:
Name:
Its:
ASSIGNEE:
Address for Notice:
Attn: By:
Tel: Name:
Fax: Its:
Domestic Lending Office:
Eurodollar Lending Office:
Attn:
Tel:
Fax:
ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent
By:
Name:
Its:
BORROWERS:
Accepted and approved this ____ day
of ________________________, 199_:
Triton Energy Limited
By:
▇▇▇▇▇ ▇▇▇▇,
Senior Vice President and
Chief Financial Officer
Triton Energy Corporation
By:
▇▇▇▇▇ ▇▇▇▇,
Vice President