Exhibit 10.87
CREDIT AGREEMENT
dated as of
February 29, 2000
among
TRITON ENERGY LIMITED
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent.
___________________________
CHASE SECURITIES INC.,
as Lead Arranger
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms. 1
SECTION 1.02. Classification of Loans and Borrowings. 14
SECTION 1.03. Terms Generally. 14
SECTION 1.04. Accounting Terms; GAAP 14
ARTICLE II
The Credits
SECTION 2.01. Commitments. 15
SECTION 2.02. Loans and Borrowings. 15
SECTION 2.03. Requests for Revolving Borrowings. 15
SECTION 2.04. Letters of Credit 16
SECTION 2.05. Funding of Borrowings. 19
SECTION 2.06. Interest Elections. 19
SECTION 2.07. Termination and Reduction of Commitments. 20
SECTION 2.08. Repayment of Loans; Evidence of Debt. 20
SECTION 2.09. Prepayment of Loans. 21
SECTION 2.10. Fees. 22
SECTION 2.11. Interest. 22
SECTION 2.12. Alternate Rate of Interest. 23
SECTION 2.13. Increased Costs. 23
SECTION 2.14. Break Funding Payments. 24
SECTION 2.15. Taxes. 24
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. 25
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. 26
SECTION 2.18. Borrowing Base 27
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers. 28
SECTION 3.02. Authorization; Enforceability. 28
SECTION 3.03. Governmental Approvals; No Conflicts. 28
SECTION 3.04. Financial Condition; No Material Adverse Change. 28
SECTION 3.05. Properties. 28
SECTION 3.06. Litigation and Environmental Matters. 29
SECTION 3.07. Compliance with Laws and Agreements. 29
SECTION 3.08. Investment and Holding Company Status. 29
SECTION 3.09. Taxes. 29
SECTION 3.10. ERISA. 29
SECTION 3.11. Disclosure. 29
SECTION 3.12. Year 2000. 30
SECTION 3.13. Regulation U 30
SECTION 3.14. Subsidiaries 30
SECTION 3.15. Outside Letters of Credit 30
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. 30
SECTION 4.02. Each Credit Event. 31
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Ratings Change and
Other Information. 31
SECTION 5.02. Notices of Material Events. 32
SECTION 5.03. Existence; Conduct of Business. 33
SECTION 5.04. Payment of Obligations. 33
SECTION 5.05. Maintenance of Properties; Insurance. 33
SECTION 5.06. Books and Records; Inspection Rights. 33
SECTION 5.07. Compliance with Laws. 33
SECTION 5.08. Use of Proceeds and Letters of Credit. 33
SECTION 5.09. Engineering Reports 33
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness. 34
SECTION 6.02. Liens. 35
SECTION 6.03. Fundamental Changes. 36
SECTION 6.04. Investments, Loans, Advances, Guarantees
and Acquisitions. 36
SECTION 6.05. Hedging Agreements. 37
SECTION 6.06. Restricted Payments. 37
SECTION 6.07. Transactions with Affiliates. 37
SECTION 6.08. Restrictive Agreements. 38
SECTION 6.09. Net Debt to EBITDA Ratio 38
SECTION 6.10. Ratio of EBITDA to Interest Expense 38
SECTION 6.11. Asset Disposition 38
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. 38
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. 41
SECTION 9.02. Waivers; Amendments. 42
SECTION 9.03. Expenses; Indemnity; Damage Waiver. 42
SECTION 9.04. Successors and Assigns. 43
SECTION 9.05. Survival. 45
SECTION 9.06. Counterparts; Integration; Effectiveness. 45
SECTION 9.07. Severability. 45
SECTION 9.08. Right of Setoff. 45
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process. 46
SECTION 9.10. WAIVER OF JURY TRIAL. 46
SECTION 9.11. Headings. 46
SECTION 9.12. Confidentiality. 46
SECTION 9.13. Interest Rate Limitation. 47
SECTION 9.14 U.S. Dollars of the Essence 47
SECTION 9.15 Waiver of Sovereign Immunity; Commercial Activity 47
SCHEDULES:
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Schedule 1.01A - Investments
Schedule 2.01 - Commitments
Schedule 3.06 - Disclosed Matters
Schedule 3.14 - Subsidiaries
Schedule 3.15 - Outside Letters of Credit
Schedule 6.01 - Existing Indebtedness
Schedule 6.02 - Existing Liens
Schedule 6.08 - Existing Restrictions
EXHIBITS:
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Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Opinion of Borrower's Special Counsel
Exhibit B-2 - Form of Opinion of Borrower's Cayman Islands Counsel
Exhibit C - Form of Borrowing Request
Exhibit D - Form of Interest Election Request
This CREDIT AGREEMENT (the "Agreement") is among Triton Energy
Limited, a Cayman Islands company (the "Borrower"), the lenders party hereto,
and THE CHASE MANHATTAN BANK, as Administrative Agent, for such lenders.
The parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Additional Reports" has the meaning defined in Section 5.09.
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"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
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for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
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percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
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Revolving Loan or Eurodollar Revolving Loan, or with respect to the commitment
fees payable hereunder, or with respect to the Performance Letter of Credit Fees
or Financial Letter of Credit Fees, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread", "Eurodollar Spread",
"Commitment Fee", "Performance Letter of Credit Fee" or "Financial Letter of
Credit Fee", as the case may be, based upon the Borrowing Base Utilization and
the ratings by Moody's and S&P, respectively, applicable on such date to the
Index Debt:
Equal to or greater
Borrowing Base than 33% but less
Utilization Less than 33% than or equal to 66% Greater than 66%
Eurodollar Spread Category Category Category Category Category Category
I II I II I II
2.25% 2.50% 2.50% 2.75% 2.75% 3.00%
ABR Spread 1.25% 1.50% 1.50% 1.75% 1.75% 2.00%
Commitment Fee 0.75% 0.75% 0.75% 0.75% 0.75% 0.75%
Performance Letter of Credit Fee 1.35% 1.50% 1.50% 1.65% 1.65% 1.80%
Financial Letter of Credit Fee 2.25% 2.50% 2.50% 2.75% 2.75% 3.00%
Category I - Index Debt of the Borrower is rated BB+ or higher by S&P or Ba1or
higher by Moody's.
Category II - Index Debt of the Borrower is not rated BB+ or higher by S&P and
is not rated Ba1 or higher by Moody's.
Notwithstanding the foregoing, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category II; (ii)
if the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt shall fall within different Categories, the Applicable Rate
shall be based on the higher of the two ratings unless one of the two ratings is
two or more lower than the other, in which case the Applicable Rate shall be
determined by reference to Category II; (iii) if the ratings established or
deemed to have been established by Moody's and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of Moody's or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency, irrespective of when notice of such
change shall have been furnished by the Borrower to the Agent and the Lenders
pursuant to Section 5.01(f) hereof or otherwise; and (iv) changes to Borrowing
Base Utilization are effective on the date of the change, whether as a result of
a change in the Borrowing Base or a change in the Revolving Credit Exposure.
Each change in the Applicable Rate shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of Moody's or
S&P shall change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Assessment Rate" means, for any day, the annual assessment rate in
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effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
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any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent and the
Assignor and Assignee.
"Availability Period" means the period from and including the
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Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
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multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" is defined in the first paragraph of this Agreement.
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"Borrowing" means Revolving Loans of the same Type, made, converted or
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continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Base" is defined in Section 2.18.
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"Borrowing Base Utilization" means, as of any day, the fraction
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expressed as a percentage, the numerator of which is the sum of the Revolving
Credit Exposures plus Outside LC Exposure for all Lenders on such day, and the
denominator of which is the Borrowing Base in effect on such day.
"Borrowing Request" means a request by the Borrower for a Revolving
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Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
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the term "Business Day" shall also exclude any day on which banks are not open
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for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 15% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or group
other than by any Person or group possessing, as of the date of this Agreement,
more than 15% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of the Borrower.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.07 or Section 7.01
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed all or part of its Commitment,
as applicable. The initial aggregate amount of the Lenders' Commitments is
$150,000,000.
"Completion Guaranty" shall mean, with respect to any Project
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Financing, any unsecured interim construction guaranty of completion of the
construction of the project which is financed with such Project Financing,
provided that in no event shall "Completion Guaranty" include any obligation of
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the Borrower or any Subsidiary of the Borrower to pay money.
"Consolidated" refers to the consolidation of the accounts of the
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Borrower and its Subsidiaries (other than Project Finance Subsidiaries) in
accordance with GAAP.
"Consolidated Group" means the Borrower and its Consolidated
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Subsidiaries.
"Consolidated Net Interest Expense" means, for the Consolidated Group,
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for any period, the Consolidated interest expense included in a Consolidated
income statement (net of interest income) for such period, determined in
accordance with GAAP, in respect of such Consolidated Group, including, without
limitation or duplication (or, to the extent not so included, with the addition
of), to the extent allocable to such period, (i) the portion of any rental
obligation in respect of any Capital Lease Obligation allocable to interest
expense in accordance with GAAP; (ii) the amortization of original issue
discounts; (iii) any interest payments or fees with respect to bankers
acceptances or similar facilities, (iv) Restricted Preferred Interest dividends
or distributions payable during such period; and (v) any other interest
capitalized under GAAP.
"Consolidated Net Debt" means, for the Consolidated Group, (a) on a
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Consolidated basis, all obligations (determined under GAAP) for borrowed money
or with respect to deposits or advances of any kind, all Capital Lease
Obligations and all obligations evidenced by bonds, debentures, notes or similar
instruments, plus (b) the OCENSA Swap Obligation, minus (c) cash and cash
equivalents and plus (d) the positive amount, if any, that accounts payable
exceed accounts receivable (determined under GAAP).
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
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environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
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America.
"EBITDA" means, for the Consolidated Group, for any period, the sum of
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(i) the Consolidated net income (or loss) for such period determined in
accordance with GAAP plus (ii) to the extent included in the determination of
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such net income (or loss), the Consolidated charges for such period for
interest, depreciation, depletion and amortization plus (or, if there is a
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benefit from income taxes, minus) (iii) to the extent included in the
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determination of such net income, the amount of the provision for or benefit
from income taxes; provided, however, that in determining such Consolidated net
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income, such Consolidated charges and such provision for or benefit from income
taxes, there shall be excluded therefrom (to the extent otherwise included
therein) (a) the net income (or loss) of, charges for interest, depreciation,
depletion and amortization of, and such provision for or benefit from income
taxes of, any Person acquired by a member of the Consolidated Group in a
pooling-of-interest transaction for any period prior to the date of such
transaction, (b) the net income (but not loss) of, charges for interest,
depreciation, depletion and amortization of, and such provision for (but not
benefit from) income taxes of, any member of the Consolidated Group (other than
the Borrower) which is subject to any restriction which prevents the payment of
dividends or the making of distributions on the capital stock, partnership
interests or other ownership interests of such Person to the extent of such
restrictions, (c) pre-tax gains or losses on the sale, transfer or other
disposition of any Property by any member of the Consolidated Group, other than
assets sold in the ordinary course of business, (d) all extraordinary gains and
extraordinary losses, prior to applicable income taxes, and (e) any item
constituting the cumulative effect of a change in accounting principles, prior
to applicable income taxes and (f) all expenses from the writedown of
capitalized exploration costs and the writedown of capitalized costs through the
application of the full cost ceiling limitation as prescribed by the SEC.
"Effective Date" means the date on which the conditions specified in
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Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
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ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
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(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
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4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
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VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
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Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.15(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the weighted
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average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Letter of Credit" means a Letter of Credit qualifying as a
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"financial guarantee-type letter of credit" under 12 CFR Part 3, Appendix A,
Section 3(b)(1)(i) or any successor U.S. Comptroller of the Currency regulation.
"Financial Officer" means the chief financial officer, principal
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accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of
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a jurisdiction other than the United States of America, each State thereof and
the District of Columbia.
"FPSO Obligation" means obligations of the Borrower or any Subsidiary
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under a charter lease agreement for a floating production, storage and
off-loading tanker facility for the purpose of developing Borrower's
Hydrocarbons in Equatorial Guinea if (a) payments thereunder do not exceed
$27,500,000 in any calendar year and (b) the Lease Term is less than 3 years.
"Lease Term" means any fixed term and any period or periods covered by an option
to renew at a sufficiently low rental or sufficiently high penalty that the
exercise of the option is reasonably assured, as amended, waived or modified,
unless such amendment, waiver or modification thereto materially changes the
amounts payable thereunder or its Lease Term as determined by the Administrative
Agent in its reasonable discretion.
"GAAP" means generally accepted accounting principles in the United
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States of America.
"Governmental Authority" means the government of the United States of
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America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
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obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
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indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
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endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
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wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
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foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Hydrocarbons" shall mean oil, gas, casinghead gas, drip gasoline,
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natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons and all products refined or separated therefrom.
"Hydrocarbon 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, communication, and
pooling agreements or arrangements.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit, (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances and (k) Restricted Preferred
Stock. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
------------------
"Index Debt" means senior, unsecured, long-term indebtedness for
-----------
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Initial Reserve Report" means the Reserve Report prepared in
------------------------
accordance with Section 5.09.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
-----------------------
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration,
as the case may be, after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing, the
----------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (i) if any Interest Period
--------
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such
Borrowing.
"Issuing Bank" means the Administrative Agent, or, with the consent of
------------
such Lender, any Lender, in its capacity as the issuer of Letters of Credit
hereunder. The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall
be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
-----------------
Agreement, including Performance Letters of Credit or Financial Letters of
Credit.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
----------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, any Letters of Credit, each
---------------
Borrowing Request, each Interest Election Request, each other document delivered
in connection with this Agreement, and each extension, waiver, amendment or
modification of each of the foregoing.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
-------------------------
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower
or any of its Subsidiaries to perform any of its obligations or (c) the rights
of or benefits available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans or
----------------------
the Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" means any Subsidiary which (a) owns, directly or
-------------------
indirectly through one or more Subsidiaries, assets with book or fair market
value in excess of $5,000,000 or (b) owns any Hydrocarbons included in the most
recently delivered Reserve Report.
"Maturity Date" means February 28, 2002.
--------------
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
-------------------
4001(a)(3) of ERISA.
"OCENSA" means Oleoducto Central S.A., a Colombian company.
------
"OCENSA Swap Obligation" means $100,000,000, until the Confirmation,
------------------------
dated February 2, 1998 between Triton International Finance, Inc., a Cayman
Islands company, and Morgan Guaranty Trust Company of New York, has been
terminated and all amounts owed thereunder have been paid, at which time the
"OCENSA Swap Obligation" shall be $0.
"Oil and Gas Properties" shall mean Hydrocarbon Interests; the
-------------------------
Properties now or hereafter pooled or unitized with Hydrocarbon Interests; all
presently existing or future unitization, pooling agreements and declarations of
pooled units and the units created thereby (including without limitation all
units created under orders, regulations and rules of any Governmental Authority)
which may affect all or any portion of the Hydrocarbon Interests; all operating
agreements, contracts and other agreements which relate to any of the
Hydrocarbon Interests or the production, sale, purchase, exchange or processing
of Hydrocarbons from or attributable to such Hydrocarbon Interests; all
Hydrocarbons in and under and which may be produced and saved or attributable to
the Hydrocarbon Interests, including all oil in tanks, the lands covered thereby
and all rents, issues, profits, proceeds, products, revenues and other incomes
from or attributable to the Hydrocarbon Interests; all tenements, hereditaments,
appurtenances and Properties in any manner appertaining, belonging, affixed or
incidental to the Hydrocarbon Interests and all Properties, rights, titles,
interests and estates described or referred to above, including any and all
Property, real or personal, now owned or hereafter acquired and situated upon,
used, held for use or useful in connection with the operating, working or
development of any of such Hydrocarbon Interests or Property (excluding drilling
rigs, automotive equipment or other personal property which may be on such
premises for the purpose of drilling a well or for other similar temporary uses)
and including any and all oil wells, gas wells, injection wells or other wells,
buildings, structures, fuel separators, liquid extraction plants, plant
compressors, pumps, pumping units, field gathering systems, tanks and tank
batteries, fixtures, valves, fittings, machinery and parts, engines, boilers,
meters, apparatus, equipment, appliances, tools, implements, cables, wires,
towers, casing, tubing and rods, surface leases, rights-of-way, easements and
servitudes together with all additions, substitutions, replacements, accessions
and attachments to any and all of the foregoing.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Outside LC Exposure" means the amount, if any that (a) the sum of (i)
-------------------
the aggregate undrawn amount of all Outside Letters of Credit plus (ii) all
payments made by issuers of Outside Letters of Credit made under such Outside
Letters of Credit for which such issuer has not been reimbursed by the Borrower
in accordance with the terms thereunder exceeds (b) before December 31, 2000,
$15,000,000, or on and after December 31, 2000, $10,000,000.
"Outside Letter of Credit" means all obligations of the Borrower and
--------------------------
its Subsidiaries, contingent or otherwise, as an account party in respect of
letters of credit and letters of guaranty, excluding the Letters of Credit
issued under Section 2.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Participant" has the meaning set forth in Section 9.04(e).
-----------
"Performance Letter of Credit" means a letter of credit qualifying as
-----------------------------
a "performance-based standby letter of credit" under 12 CFR Part 3, Appendix A,
Section 3(b)(2)(i) or any successor U.S. Comptroller of the Currency regulation.
"Permitted Encumbrances" means:
-----------------------
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(c) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;
(d) judgment liens in respect of judgments that do not constitute an Event
of Default under Section 7.01(k);
(e) Liens in connection with workmen's compensation, unemployment insurance
or other social security, old age pension or public liability obligations not
yet due or which are being contested in compliance with Section 5.04 in good
faith by appropriate action and for which adequate reserves have been maintained
in accordance with GAAP;
(f) operator's, vendors', carriers', warehousemen's, repairmen's,
mechanics', workmen's, materialmen's, construction or other like Liens arising
by operation of law in the ordinary course of business or incident to the
exploration, development, operation and maintenance of Oil and Gas Properties or
statutory landlord's liens, each of which is in respect of obligations that have
not been outstanding more than 90 days or which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
maintained in accordance with GAAP;
(g) any Liens or contract rights reserved in agreements creating
Hydrocarbon Interests and for compliance with the terms of such agreements or
leases in the case of leasehold estates, to the extent that any such Lien
referred to in this clause does not materially impair the use of the Property
covered by such Lien for the purposes for which such Property is held by the
Borrower or materially impair the value of such Property subject thereto;
(h) encumbrances (other than to secure the payment of borrowed money or the
deferred purchase price of Property or services), easements, restrictions,
servitudes, permits, conditions, covenants, exceptions or reservations in any
rights of way or other Property of the Borrower for the purpose of roads,
pipelines, transmission lines, transportation lines, distribution lines for the
removal of gas, oil, coal or other minerals or timber, and other like purposes,
or for the joint or common use of real estate, rights of way, facilities and
equipment, and defects, irregularities, zoning restrictions and deficiencies in
title of any rights of way or other Property which in the aggregate do not
materially impair the use of such rights of way or other Property for the
purposes of which such rights of way and other Property are held by the Borrower
or materially impair the value of such Property subject thereto; and
(i) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations and other obligations of a like nature incurred in the
ordinary course of business.
provided that the term "Permitted Encumbrances" shall not include any Lien
- --------
securing Indebtedness.
"Permitted Investments" means:
----------------------
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in clause (c) above;
and
(e) investments described in Schedule 1.01A.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Preferred Interest" means, as applied to any Person, any capital
-------------------
stock, partnership interest or other ownership interest of such Person which is
entitled to preference or priority over any other capital stock, partnership
interest or other ownership interest of such Person in respect of either the
payment of dividends or distributions or the distribution of assets upon
liquidation.
"Preferred Stock" means (i) as applied to any partnership, partnership
---------------
interests in such partnership which shall be entitled to preference or priority
over any other partnership interest in such partnership in respect of any
distribution of cash, property or other assets, (ii) as applied to any
corporation, shares of such corporation which shall be entitled to preference or
priority over any other shares of such corporation in respect of either the
payment of dividends or the distribution of assets upon liquidation, and (iii)
as applied to any other entity, interests in such entity which shall be entitled
to preference or priority over any other interests in such entity in respect of
any distribution of cash, property or other assets.
"Prime Rate" means the rate of interest per annum publicly announced
-----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Project Financing" means Indebtedness incurred by a Project Financing
-----------------
Subsidiary to finance the acquisition (other than any acquisition from Borrower
or any of its Subsidiaries) or construction of a project which Indebtedness does
not permit or provide for recourse against the Borrower or any of its
Subsidiaries (other than the Project Financing Subsidiary that is to acquire or
construct such project and any Project Financing Subsidiary that owns a general
or limited partnership interest or similar interest in the Project Financing
Subsidiary that is to acquire or construct such project).
"Project Financing Subsidiary" means a Subsidiary of the Borrower (a)
-----------------------------
that is created to (i) construct or acquire (other than any acquisition from
Borrower or any of its Subsidiaries) a project that will be or is financed
solely with Project Financing for such project incurred by such Subsidiary and
related equity investments for such project, (ii) own a general or limited
partnership interest (or similar interest) in a Project Financing Subsidiary, or
(iii) own an interest in any such project, (b) whose assets are limited solely
to those assets being financed by such Project Financing or by the related
equity investments or a general or limited partnership interest (or similar
interest) in a Project Financing Subsidiary whose assets are limited solely to
those assets being financed by such Project Financing and any loans to, or
capital contributions in, such Project Financing Subsidiary that are Permitted
Investments, and (c) notice of which has been delivered to the Administrative
Agent and each Lender.
"Property" shall mean any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Redetermination Date" has the meaning set forth in Section 2.18(a).
---------------------
"Register" has the meaning set forth in Section 9.04.
--------
"Related Parties" means, with respect to any specified Person, such
----------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reports" mean the Reserve Reports and Additional Reports.
-------
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing more than 66-2/3% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time.
"Reserve Report" shall mean a report, in form and substance reasonably
--------------
satisfactory to the Administrative Agent, setting forth, as of January 1 (or
such other date specified in Section 4.01(f) for the Initial Reserve Report or,
in the event of an unscheduled redetermination, such other date specified in
Section 2.18(d)) the proved oil and gas reserves attributable to the
Consolidated Group's Oil and Gas Properties, together with a projection of the
rate of production and future net income, production, severance or similar
taxes, operating expenses and capital expenditures with respect thereto as of
such date, based upon the pricing assumptions consistent with SEC reporting
requirements at the time. Furthermore, such information shall be provided for
each individual well, unit or lease comprising the Consolidated Group's Oil and
Gas Properties and by category of the reserves contained in each well, unit or
lease including proved producing, proved non-producing and proved undeveloped.
Such report must also include a comparison of actual and projected production
volumes for the Consolidated Group's Oil and Gas Properties.
"Responsible Officer" shall mean as to any Person, the Chief Executive
-------------------
Officer, the President or any Vice President of such Person and, with respect to
financial matters, the term "Responsible Officer" shall include the Financial
Officers of such Person. Unless otherwise specified, all references to a
Responsible Officer herein shall mean a Responsible Officer of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"Restricted Preferred Interest" means any Preferred Interest which is
------------------------------
subject to retirement, purchase, redemption, other acquisition or conversion
(other than a conversion into common stock of the Borrower), in whole or in
part, at the option of the holder thereof.
"Restricted Preferred Stock" means any Preferred Stock that is subject
--------------------------
to required repayment (other than payment of dividends and distributions),
redemption, repurchase, retirement, exchange for debt or Restricted Preferred
Stock or conversion into debt or Restricted Preferred Stock, at the option of
the holder or any other Person or at a fixed or determinable date or dates,
whether by operation of a sinking fund or otherwise, or otherwise upon the
occurrence of a condition not within the control of the issuer.
"Revolving Credit Exposure" means, with respect to any Lender at any
---------------------------
time, the sum of (a) the outstanding principal amount of such Lender's Revolving
Loans and (b) its LC Exposure.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
---------------
"S&P" means Standard & Poor's.
---
"Scheduled Redetermination" has the meaning set forth in Section
--------------------------
2.18(d).
"Scheduled Redetermination Date" has the meaning set forth in Section
-------------------------------
2.18(d).
"SEC" shall mean the Securities and Exchange Commission or any
---
successor Governmental Authority.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
------------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to, three months,
in the case of the Base CD Rate, and (b) with respect to the Adjusted LIBO Rate,
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. If not otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
--------------------------------
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Transactions" means the execution, delivery and performance by the
------------
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof and the obtaining by the Borrower of any Letters of Credit.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate, and when used in reference to a Letter of Credit, refers to whether
the Letter of Credit is a Performance Letter of Credit or Financial Letter of
Credit.
"Unscheduled Redetermination" means an unscheduled redetermination
----------------------------
requested by the Borrower or the Required Banks under Section 2.18(d).
"Withdrawal Liability" means liability to a Multiemployer Plan as a
---------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
-------------------------------------------
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
--- ---
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
---
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
---
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
---- ---
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
-----------------
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP . Except as otherwise
------------------------
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions
------------
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender's Revolving Credit Exposure plus
such Lender's Applicable Percentage of Outside LC Exposure exceeding the lesser
of (i) such Lender's Applicable Percentage of the Borrowing Base or (ii) such
Lender's Commitment or (b) the sum of the total Revolving Credit Exposures plus
Outside LC Exposure for all Lenders exceeding the lesser of (i) Borrowing Base
or (ii) the total Commitment of all Lenders. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
-----------------------
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
--------
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.12, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
--------
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
- --------
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of 6
--------
Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
-----------------------------------
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request ("Borrowing Request") by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice of an
ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.04(e) may be given not later than 10:00 a.m., New York
City time on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in
substantially in the form attached hereto as Exhibit C and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period";
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the requirements of
Section 2.05;
(vi) the Borrowing Base Utilization on the date of such
Borrowing (after giving effect to such Borrowing); and
(vii) The amount of Outside LC Exposure on the Business Day
of the proposed Borrowing.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration, in the case of a Eurodollar Borrowing. Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Letters of Credit . (a) General. Subject to the
------------------- --------
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the period from and including the Effective Date to but excluding the day
that is six days before the last day of the Availability Period. In the event
of any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
- ----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a written notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof, the Type of the Letter of Credit, and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $20,000,000 and (ii) the sum of
the total Revolving Credit Exposures plus Outside LC Exposure shall not exceed
the lesser of (A) the total Commitments and (B) the Borrowing Base.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
----------------
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
---------------
amendment, renewal or extension of a Letter of Credit) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
--------------
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement which, unless (i) otherwise reimbursed by the Borrower by no later
than 12:00 noon, New York City Time or (ii) there is an Event of Default under
Section 7.01(i) or 7.01(h), shall be made by an ABR Revolving Borrowing in an
equivalent amount, the Borrowing Request for which shall be deemed to have been
delivered to the Administrative Agent on the day of such LC Disbursement.
Promptly following notice from the Administrate Agent, the Borrower shall
execute and deliver a Borrowing Request confirming such deemed delivery.
Promptly following such LC Disbursement the Administrative Agent shall notify
each Lender of such Lender's Applicable Percentage of such ABR Revolving
Borrowing. Promptly following receipt of such notice, each Lender shall pay to
the Administrative Agent its Applicable Percentage of such ABR Revolving
Borrowing in the same manner as provided in Section 2.05 with respect to Loans
made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the
------- --------
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interests may appear.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
---------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
-------------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
------------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
- --------
pursuant to paragraph (e) of this Section, then Section 2.11(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall occur and be
-----------------------
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
--------
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Section 7.01. Such deposit shall be held by
the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make
----------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 1:00 p.m., New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the Issuing Bank .
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
-------------------
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election ("Interest Election Request") pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request substantially in the form of Exhibit D attached hereto
and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the Borrowing Base Utilization on the effective date
of the election (after giving effect to any new Borrowings on such
date).
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
---------------------------------------------
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
--------
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $10,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the sum of the Revolving Credit Exposures would
exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
--------
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked, or the effective date postponed, by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date)
if such condition remains unsatisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
-----------------------------------------
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving
Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have
--------------------
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b) of this
Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
--------
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked, or the effective date postponed, if such
notice of termination is revoked, or the effective date postponed, in accordance
with Section 2.07. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11.
(c) Upon any redetermination of the amount of the Borrowing Base in
accordance with Section 2.18, if the redetermined Borrowing Base is less than
the aggregate Revolving Credit Exposure plus Outside LC Exposure (the "Borrowing
---------
Base Deficiency"), then (i) the Borrower shall, within ninety (90) days of
- ----------------
receipt of written notice of such redetermination, prepay the Loans in an
aggregate principal amount equal to or greater than 50% of the Borrowing Base
Deficiency together with interest on the principal amount paid accrued to the
date of such prepayment and (ii) the Borrower shall, within 180 days of receipt
of written notice of such redetermination, prepay the Loans in an aggregate
principal amount necessary to eliminate the Borrowing Base Deficiency together
with interest on the principal amount paid accrued to the date of such
prepayment.
(d) Upon any ABR Revolving Borrowing made pursuant to Section 2.04(e),
if the Borrowing Base is less than the aggregate Revolving Credit Exposure plus
Outside LC Exposure after giving effect to such ABR Revolving Borrowing, an
amount sufficient to reduce the aggregate Revolving Credit Exposure plus the
Outside LC Exposure to be equal to or less than the Borrowing Base shall be
immediately due and payable.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily amount by which such Lender's
Applicable Percentage of the lesser of the Borrowing Base or the Commitment of
such Lender exceeds the Revolving Credit Exposure of such Lender during the
period from and including February 29, 2000 to but excluding the date on which
such Commitment terminates. Accrued commitment fees shall be payable in arrears
on the last day of March, June, September and December of each year and on the
date on which the Commitments terminate, commencing on the first such date to
occur after the date hereof. All commitment fees shall be computed on the basis
of a year of 365 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the Applicable Rate for the Type of
such Letter of Credit on the average daily amount of such Lender's LC Exposure
for such Type of Letter of Credit (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the
rate of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the
- --------
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
---------
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
--------
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
------------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate), or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
--------
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
-------- -------
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
-------------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked or
the effective date postponed under Section 2.07(c) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.17, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account
------
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
--------
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent or such Lender or the Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
---------------------------------------------------
Set-offs. (a) The Borrower shall make each payment required to be made by it
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hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements; provided that (i) if any
--------
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to 2.05(b) or 2.16(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
---------------------------------------------------
(a) If any Lender requests compensation under Section 2.13, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
--------
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.13 or payments required to be made
pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.18. Borrowing Base .
---------------
(a) The borrowing base ("Borrowing Base") shall be determined in
accordance with Section 2.18(b) by the Administrative Agent with the concurrence
of the Required Lenders and is subject to redetermination in accordance with
Section 2.18(d). Upon any redetermination of the Borrowing Base, such
redetermination shall remain in effect until the next successive Redetermination
Date. "Redetermination Date" means the date that the redetermined Borrowing
---------------------
Base becomes effective in accordance with Section 2.18(e) both for Scheduled
Redeterminations and unscheduled redeterminations. So long as any of the
Commitments are in effect and until all of the Loans outstanding hereunder are
paid in full, this facility shall be governed by the then effective Borrowing
Base. During the period from and after the Effective Date until the first
Redetermination Date, the amount of the Borrowing Base shall be $150,000,000.
(b) Upon receipt of the Reports in accordance with Section 5.09, the
Administrative Agent will propose a new Borrowing Base. Such proposal will be
in accordance with the Administrative Agent's normal and customary procedures
for evaluating international or domestic, as the case may be, oil and gas
reserves and other related assets as such exist at that particular time with any
changes to such procedures as the Administrative Agent, in its sole discretion,
deems reasonably appropriate to reflect changed circumstances or conditions
generally in the domestic or international oil and gas industry including,
without limitation, adjustments to the rates, volumes, prices and other
assumptions set forth therein from time to time. The Administrative Agent shall
propose to the Lenders a new Borrowing Base within 30 days following receipt by
the Administrative Agent of the Reports in a timely and complete manner. After
having received notice of such proposal by the Administrative Agent, the
Required Lenders shall have 14 days to agree or disagree with such proposal.
If, at the end of 14 days, the Required Lenders have not communicated their
approval or disapproval, such silence shall be deemed to be an approval and the
Administrative Agent's proposal shall be the new Borrowing Base. If however,
the Required Lenders notify the Agent within 14 days of their disapproval, the
Required Lenders shall, within a reasonable period of time, agree on a new
Borrowing Base.
(c) The Administrative Agent may exclude any Oil and Gas Property or
portion of production therefrom or any income from any other Property from the
Borrowing Base, at any time, if any Hydrocarbon Interests are forfeited or
suspended pursuant to the terms of the instrument granting the same.
(d) So long as any of the Commitments are in effect or there is any
Revolving Credit Exposure, effective as of the day notice is given under
Section 2.18(e) (each being a "Scheduled Redetermination Date"), the
--------------------------------
Administrative Agent and Required Lenders shall redetermine the amount of the
Borrowing Base in accordance with Section 2.18(b) (each being a "Scheduled
---------
Redetermination"). In addition, Borrower may request an unscheduled
- ---------------
redetermination of the Borrowing Base at any other time but no more often than
once between Scheduled Redetermination Dates by specifying in writing to the
Administrative Agent the date on which such redetermination is to occur and
providing a Reserve Report in accordance with Section 5.09(b) prior to the
requested redetermination date and providing any Additional Reports. Also, the
Required Lenders may request an unscheduled redetermination of the Borrowing
Base at any other time but no more often than once between Scheduled
Redetermination Dates by specifying in writing to the Borrower the date on which
the Borrower is to furnish a Reserve Report (and the "as of" date of such
Reserve Report) and Additional Reports, if any, in accordance with Section
5.09(b) and the date on which such redetermination is to occur.
(e) The Administrative Agent shall promptly notify in writing the
Borrower and the Lenders of the new Borrowing Base. Any redetermination of the
Borrowing Base shall not be in effect until written notice is given in
accordance with Section 9.01.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
---------------------
Material Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite
corporate power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
-------------------------------
are within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
----------------------------------------
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
---------------------------------------------------
(a) The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of operations, shareholders equity and cash flows
(i) as of and for the fiscal year ended December 31, 1998, reported on by
independent, United States-based public accountants of recognized national
standing, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended September 30, 1999, certified by a Financial Officer (the
statements in (i) and (ii) are referred to as the "Delivered Statements"). The
Delivered Statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to the adjustments described in Schedule 3.04 and subject to
year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above. Before the day of the initial
Loans, the Borrower will have furnished to the Lenders its consolidated balance
sheet and statements of operations, shareholders equity and cash flows as of and
for the fiscal year ended December 31, 1999, reported on by independent, United
States-based public accountants of recognized national standing ("1999
Statements"). The 1999 Statements present fairly, in all material respects,
the financial position and results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP
(b) Since September 30, 1999, there have been no events or occurrences
that, in the aggregate, have had a Material Adverse Effect.
SECTION 3.05. Properties. (a) Each of the Borrower and its
-----------
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
---------------------------------------
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
-------------------------------------
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
--------------------------------------
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries
------
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
------
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $10,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$10,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the
-----------
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
--------
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION 3.12. Year 2000. The Year 2000 date change has not
-----------
resulted in a material disruption of the Borrower's and its Subsidiaries'
computer hardware, software, databases, systems and other equipment containing
embedded microchips (including systems and equipment supplied by others or with
which the Borrower's or its Subsidiaries' systems interface), or to the
Borrower's or its Subsidiaries' operations or business systems, or to the best
of the Borrower's and its Subsidiaries' knowledge, to the operations or business
systems of the Borrower's major vendors, customers, suppliers and
counterparties. Borrower has no reason to believe that liabilities and
expenditures related to the Year 2000 date-change (including, without
limitation, costs caused by reprogramming errors, the failure of others' systems
or equipment, and the potential liability, if any, of the Borrower or its
Subsidiaries for Year 2000 related costs incurred or disruption experienced by
others) will result in a Default or a Material Adverse Effect.
SECTION 3.13. Regulation U . Following application of the
-------------
proceeds of each Loan, not more than 25 percent of the value of the assets which
are subject to any arrangement with the Administrative Agent or any Lender
(herein or otherwise) whereby the Borrower's right or ability to sell, pledge or
otherwise dispose of assets is in any way restricted (or pursuant to which the
exercise of any such right is or may be cause for accelerating the maturity of
all or any portion of the Loans or any other amount payable hereunder or under
any such other arrangement), will be margin stock (within the meaning of
Regulation U issued by the Federal Reserve Board). No proceeds of any Loan have
been used in violation of Section 5.08.
SECTION 3.14. Subsidiaries . Each Subsidiary of the Borrower as
------------
of February 29, 2000 is listed on Schedule 3.14. Each Material Subsidiary as
of the date of the most recently delivered certificate of a Financial Officer
described in Section 5.01(c) is listed on Schedule 3.14 as revised by such
certificate in accordance with Section 5.01(c).
SECTION 3.15. Outside Letters of Credit . Each Outside Letter of
-------------------------
Credit is listed on Schedule 3.15, with its expiration date, name of issuer,
beneficiary and face amount except that, if the face amount is different from
the amount stated on Schedule 3.15, it is no greater than the amount stated on
Schedule 3.15. Schedule 3.15 may be updated by written notice to the
Administrative Agent and the Lenders delivered in accordance with Section 9.01
and 5.01(h).
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to
---------------
make Loans and of the Issuing Bank to issue, extend or renew Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Jackson Walker L.L.P., special counsel for the Borrower,
substantially in the form of Exhibit B-1, and covering such other matters
relating to the Borrower, or this Agreement as the Required Lenders may
reasonably request and Walkers, Cayman Islands counsel for the Borrower,
substantially in the form of Exhibit B-2, and covering such other matters
relating to the Borrower, or this Agreement, as the Required Lenders may
reasonably request. The Borrower hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating to the
Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02 and confirming the Moody's and S&P
ratings of the Index Debt.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received the Initial Reserve
Report.
SECTION 4.02. Each Credit Event. The obligation of each Lender
-------------------
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other
---------------------------------------------------
Information. The Borrower will furnish to the Administrative Agent and each
- -----------
Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
shareholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported independent, United States-based public accountants of recognized
national standing (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, shareholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of the Borrower (i)
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.06, 6.09, 6.10 and 6.11, (iii) stating
whether any change in GAAP or in the application thereof has occurred since the
date of the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (iv) stating any revisions to
Schedule 3.14 necessary so such Schedule includes each Material Subsidiary;
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the SEC, or with any national securities
exchange, as the case may be;
(f) promptly after Moody's or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
(h) promptly after any change in the information set forth in Schedule
3.15 or Schedule 3.16, the Borrower shall update such schedules in accordance
with Section 3.15 or Section 3.16, respectively except that, with respect to the
face amount of Outside Letters of Credit listed on Schedule 3.15, a reduction in
the face amount below the amount stated in such Schedule (as updated in
accordance with this Agreement) need not be updated until the next delivery of a
certificate of a Financial Officer under Section 5.01(c).
(i) promptly after execution therof, the Borrower shall deliver a copy
of all documents evidencing the FPSO Obligation, as amended from time to time.
SECTION 5.02. Notices of Material Events. The Borrower will
------------------------------
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will,
-------------------------------
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Borrower and its Subsidiaries taken as a
whole; provided that the foregoing shall not prohibit any merger, consolidation,
--------
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and
-------------------------
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower
-------------------------------------
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of the business of the Borrower and its
Subsidiaries taken as a whole in good working order and condition, ordinary wear
and tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower
-------------------------------------
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will
---------------------
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The
--------------------------------------------
proceeds of the Loans will be used only for general corporate purposes,
including but not limited to capital expenditures. No part of the proceeds of
any Loan will be used, whether directly or indirectly, to purchase or carry
"margin stock" (as defined by Regulation U) or for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations G, U and
X.
SECTION 5.09. Engineering Reports .
--------------------
(a) On or prior to each March 1 (or such other date specified in the
event of an unscheduled redetermination under Section 2.18(d)) commencing with
the Scheduled Redetermination Date to occur on March 1, 2000, the Borrower shall
furnish to the Lenders a Reserve Report prepared and certified by (i) DeGolyer
and MacNaughton, with respect to the proved reserves in the Cusiana and Cupiagua
fields in the Republic of Colombia (ii), Netherland Sewell and Associates, with
respect to the proved reserves in the Ceiba Field in Equatorial Guinea, and
(iii) the petroleum engineers of the Borrower or Carigali-Triton Carigali-Triton
Operating Company Sdn. Bhd. with respect to the proved reserves in
Malaysia-Thailand on Block A-18 in the Gulf of Thailand or, in the case of (i),
(ii) or (iii) above, such other certified independent engineers satisfactory to
the Administrative Agent. The Borrower will also provide the Lenders with any
supplemental information or updates to the information in the Reserve Report as
may be reasonably requested by any Lender through the Administrative Agent
("Additional Reports").
(b) For each unscheduled redetermination, the Borrower shall furnish to
the Lenders a Reserve Report prepared by or under the supervision of the chief
engineer of the Borrower who shall certify such Reserve Report to be true and
accurate and to have been prepared in accordance with the procedures used in the
immediately preceding Reserve Report and shall furnish to the Lenders any
Additional Reports as may be reasonably requested. For any unscheduled
redetermination requested by the Required Lenders pursuant to Section 2.18(d),
the Borrower shall provide such Reserve Report as soon as practicable, but in
any event no later than 30 days following the receipt of the request by the
Required Lenders.
(c) Concurrently with the delivery of each Reserve Report, the Borrower
shall provide the Lenders production reports covering in the aggregate, the
Borrower's net production of oil and gas, which reports shall include quantities
or volumes of production, realized product prices, operating expenses, taxes,
capital expenditures and such other information as the Administrative Agent may
reasonably request and having the same "as of" date and period as the Reserve
Report being delivered with such production report.
(d) With the delivery of each Reserve Report, the Borrower shall
provide to the Lenders, a certificate from a Responsible Officer of the Borrower
that, to the best of his or her knowledge and in all material respects, (a) the
information contained in the Reserve Report is true and correct, (b) the
Borrower has the contractual right to receive the proceeds from the production
from the Oil and Gas Properties evaluated in such Reserve Report, in such
amounts and for such durations consistent with the projected proceeds from such
production, and free of all Liens except for Permitted Encumbrances, (c) except
as set forth on an exhibit to the certificate, on a net basis there are no gas
imbalances, take or pay or other prepayments with respect to the Oil and Gas
Properties evaluated in such Reserve Report which would require the Borrower to
deliver Hydrocarbons produced from such Oil and Gas Properties at some future
time without then or thereafter receiving full payment therefor, (d) no Oil and
Gas Properties have been sold since the date of the last Borrowing Base
determination except as consented to in writing by the Required Lenders or as
permitted by the terms of this Agreement, (e) attached to the certificate is a
list of the Oil and Gas Properties added to and deleted from the immediately
prior Reserve Report, and (f) attached to the certificate are statements of the
Borrower's outstanding Hedging Agreements, which statements shall include for
each such Hedging Agreement (A) the termination date, (B) the notional amounts
or volumes and the periods covered by such volumes; and (C) the price to be paid
or the basis for calculating the price to be paid by the Borrower and the other
Person under each Hedging Agreement for each of the future periods covered by
each Hedging Agreement.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not
-------------
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness of the Consolidated Group created hereunder;
(b) Indebtedness of the Consolidated Group existing on the date hereof
and set forth in Schedule 6.01 (which schedule may exclude Indebtedness of a
member of the Consolidated Group (other than the Borrower) to any other member
of the Consolidated Group) and Indebtedness incurred by the Consolidated Group
after the date of this Agreement the proceeds of which are applied substantially
simultaneously with the receipt thereof to the repayment, retirement,
redemption, prepayment or defeasance of existing Indebtedness of the
Consolidated Group (the "Refinanced Indebtedness"); provided, that (i) such
Indebtedness incurred shall be subordinate and junior to the Indebtedness of the
Consolidated Group to the same (or greater) extent that the Refinanced
Indebtedness was subordinate and junior to the Indebtedness of the Consolidated
Group, (ii) such Indebtedness incurred shall not have a maturity date prior to
March 31, 2005 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
Indebtedness and (iii) such Indebtedness incurred shall have terms not
materially more burdensome to the Borrower than such Refinanced Indebtedness,
as determined by the Administrative Agent in its sole discretion;
(c) Indebtedness of a member of the Consolidated Group to any other
member of the Consolidated Group;
(d) Guarantees by the Borrower of Indebtedness of any member of the
Consolidated Group;
(e) Indebtedness of any member of the Consolidated Group incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets of any member of the Consolidated Group, including Capital Lease
Obligations (other than the FPSO Obligation, to the extent the FPSO Obligation
is deemed to be a Capital Lease) and any Indebtedness (other than the FPSO
Obligation, to the extent the FPSO Obligation is deemed to be a Capital Lease)
assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness is
--------
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by Section 6.01(e) and (f) shall not exceed $20,000,000
at any time outstanding;
(f) other unsecured Indebtedness of the Consolidated Group; provided
--------
that the aggregate principal amount of Indebtedness of the Consolidated Group
permitted by Section 6.01(e) and (f) shall not exceed $20,000,000 at any time
outstanding;
(g) Outside Letters of Credit if the aggregate Outside LC Exposure for
such Outside Letters of Credit is less than $25,000,000;
(h) Project Financings and liabilities under Completion Guaranties if
the aggregate amount of such Project Financings plus the aggregate maximum
liabilities under such Completion Guaranties is less than $25,000,000; and
(i) The FPSO Obligation, to the extent the FPSO Obligation is deemed to
be a Capital Lease.
SECTION 6.02. Liens. The Borrower will not, and will not permit
------
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 6.02; provided that (i)
--------
such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset
of any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary; provided that (i) such Lien is not created in
--------
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary , as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be;
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such security interests
--------
secure only Indebtedness permitted by clause (e) of Section 6.01, (ii) such
security interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iv) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary; and
(e) Liens securing any Project Financing, provided that such Lien shall
--------
secure only such Project Financing and shall extend only to the project being
acquired or constructed with the proceeds of such Project Financing and any
capital stock, partnership interest or other ownership interest in the Project
Financing Subsidiary that is acquiring or constructing such project or in the
Project Financing Subsidiary that owns the Project Financing Subsidiary that is
acquiring or constructing such project.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not,
---------------------
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv)
any Subsidiary may merge with or into another Person in a transaction that is
not prohibited by Section 6.11, (v) the Borrower may transfer shares of any
Subsidiary to any other Subsidiary and (vi) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger involving a Person
--------
that is not a wholly owned Subsidiary immediately prior to such merger shall not
be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date of execution of
this Agreement and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
------------------------------------------------
Acquisitions. The Borrower will not, and will not permit any of its
- -----------
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower in the capital stock of its
Subsidiaries;
(c) loans or advances among the Consolidated Group;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) investments in Project Financing Subsidiaries, if the aggregate
such investments are less than $10,000,000;
(f) acquisition of all of the ownership interest of Triton Pipeline
Colombia, Inc. or of any other Person substantially all of whose assets consist
of an interest in OCENSA for $100,000,000 or less before June 30, 2000, and new
investments in OCENSA (after the acquisition of such ownership interests) in an
aggregate amount not to exceed $10,000,000 from the date of this Agreement;
(g) new investments in Triton International Oil Corporation (a Cayman
Islands company) and its Subsidiaries and in Carigali-Triton Operating Co.
SDN.BHD, a Malaysia corporation, in an aggregate amount not to exceed
$25,000,000 from the date of this Agreement;
(h) Acquisition of assets or ownership interests in Persons and assets
in the same line of business as the Borrower and its Subsidiaries, provided such
Persons become Subsidiaries at the time of such acquisition; provided that the
--------
aggregate purchase price for such acquisitions (including the value of any
assumed Indebtedness) shall not exceed $20,000,000 from the date of this
Agreement; and
(i) any other Investments, not to exceed $5,000,000 in the aggregate
outstanding at any time.
SECTION 6.05. Hedging Agreements. The Consolidated Group will
--------------------
not enter into any Hedging Agreement, other than Hedging Agreements (i) for
total aggregate volumes of oil or total aggregate volumes of natural gas less
than 70% of the oil or natural gas net volumes, respectively, for the next
12-month period, as projected in the most recently delivered Reserve Report,
(ii) for total aggregate volumes of oil or total aggregate volumes of natural
gas less than 60% of the oil or natural gas net volumes, respectively, for the
next 36-month period, as projected in the most recently delivered Reserve Report
and (iii) for total aggregate volumes of oil or total aggregate volumes of
natural gas less than 50% of the oil or natural gas net volumes, respectively,
for the next 60-month period, as projected in the most recently delivered
Reserve Report.
SECTION 6.06. Restricted Payments. The Borrower will not, and
---------------------
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the Borrower
may declare and pay dividends and distributions with respect to its capital
stock payable solely in additional shares of its common stock and may purchase
shares of its capital stock with consideration consisting solely of shares of
its common stock, (b) Subsidiaries may declare and pay dividends ratably with
respect to their capital stock, (c) the Borrower may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Borrower and its Subsidiaries, (d) Restricted
Payments on Preferred Stock issued by the Borrower before the date of this
Agreement or additional shares of Preferred Stock issued as dividends after the
date of this Agreement in accordance with the terms of such Preferred Stock, and
(e) the Borrower may repurchase shares of its common stock for an aggregate
consideration not exceeding $100,000 in any fiscal year.
SECTION 6.07. Transactions with Affiliates. The Borrower will
-------------------------------
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its wholly owned Subsidiaries
not involving any other Affiliate, (c) any Restricted Payment permitted by
Section 6.06, (d) transactions with Affiliates of any director of the Borrower
in accordance with agreements in effect as of the date of this Agreement and (e)
transactions that would be permitted pursuant to Section 6.04(b), (c), (f) and
(g).
SECTION 6.08. Restrictive Agreements. The Borrower will not, and
-----------------------
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
--------
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.08 (but shall
apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, and (iv) the foregoing shall not apply to a Project
Financing Subsidiary.
SECTION 6.09. Net Debt to EBITDA Ratio . For each period of four
------------------------
consecutive fiscal quarters of the Borrower, the Borrower will not permit the
ratio of (i) Consolidated Net Debt as of the end of such period to (ii) EBITDA
for such period to be greater than 3.75 to 1.0.
SECTION 6.10. Ratio of EBITDA to Interest Expense . The Borrower
-----------------------------------
will not permit, for each period of four consecutive fiscal quarters of the
Borrower, the ratio of EBITDA for such period to Consolidated Net Interest
Expense for such period to be less than the 2.5 to 1.00.
SECTION 6.11. Asset Disposition . The Consolidated Group will not
-----------------
sell, lease, transfer (including, without limitation, any transfer pursuant to
any merger) or otherwise dispose of, any property of the Consolidated Group,
except (i) sales, leases, transfers and other dispositions of assets in the
ordinary course of business and for fair market value, (ii) the sale of assets
among members of the Consolidated Group, (iii) the sale of assets located in the
Republic of Colombia for fair market value if the aggregate fair market value of
all such assets does not exceed $10,000,000 in any fiscal year of the Borrower
(iv) the sale of assets not located in the Republic of Colombia for fair market
value if the aggregate fair market value of all such assets does not exceed
$50,000,000 in any fiscal year of the Borrower, (v) any transfer of the capital
stock among members of the Consolidated Group if (A) no Default or Event of
Default exists at the time of such transfer or would result therefrom and (B)
after giving effect to such transfer the Borrower owns, directly or indirectly,
the same percentage interest in the member of the Consolidated Group the stock
of which is being transferred as it owned immediately prior to such transfer,
(vi) any merger permitted by Section 6.03, and (vii) the transfer of assets from
a Project Financing Subsidiary.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
------------------
("Events of Default") shall occur:
-------------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower (including, without limitation, the certificate provided by the
chief engineer under Section 5.09 (b)) or any Subsidiary in or in connection
with this Agreement or any amendment or modification hereof or waiver hereunder,
or in any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any amendment or
modification hereof or waiver hereunder, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 15 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Material Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Material Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Material
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) any change in a contract or concession of the Borrower or any of
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender 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 Lender acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any related agreement or
any document furnished hereunder or thereunder. Each Lender acknowledges that
there is no fact, and that it has not made any assumption of fact, material to
its inducement to become a Bank hereunder which it has not independently and
without reliance on the Administrative Agent investigated and determined to its
satisfaction prior to its execution of this Credit Agreement.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it in care of Triton Energy, 6688 North
Central Expressway, Suite 1400, Dallas, Texas 75206, Attention of Treasurer,
(Telecopy No. (214) 691-0340);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New York, New
York 10081, Attention of Michael Cerniglia (Telecopy No. (212) 552-5777); and
(c) if to any other Lender (in its capacity as a Lender or Issuing
Bank) , to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
---------------------
the Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
--------
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, or (v) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that no
----------------
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent or the Issuing Bank hereunder without the prior written
consent of the Administrative Agent or the Issuing Bank, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
--------------------------------------
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
--------
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent or the Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
- --------
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
-------------------------
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
--------
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent (and, in the case of an assignment of
all or a portion of a Commitment or any Lender's obligations in respect of its
LC Exposure, the Issuing Bank) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
----------------
required under this paragraph shall not be required if an Event of Default has
occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
-----------
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
--------
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.16(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.13 or 2.15 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.15 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
---------
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
-------------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
-------------
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
----------------
occurred and be continuing, each Lender and each of its Affiliates 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 obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
---------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and
- -------
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in 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. Nothing in this Agreement
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
------------------------
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
---------
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
----------------
the Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
-----------
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
--------
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
-------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14 U.S. Dollars of the Essence . Each reference in the
---------------------------
Loan Documents to U.S. Dollars is of the essence. The obligation of the
Borrower in respect of any amount due under the Loan Documents shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in U.S.
Dollars that the Lender may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which the
Lender receives such payment. If the amount in U.S. Dollars that may be so
purchased for any reasons falls short of the amount originally due, the Borrower
shall pay such additional amounts, in U.S. Dollars, as may be necessary to
compensate for such a shortfall. Any obligation of the Borrower not discharged
by such payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
SECTION 9.15 Waiver of Sovereign Immunity; Commercial Activity .
--------------------------------------------------
Neither the Borrower nor its property has any right of immunity on the grounds
of sovereignty or otherwise from jurisdiction, attachment (before or after
judgment) or execution in respect of any action or proceeding relating in any
way to the Loan Documents that may be brought before any Governmental Authority.
The execution, delivery and performance of the obligations of the Loan Documents
by the Borrower constitute commercial transactions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
TRITON ENERGY LIMITED
By:____________________________________
Name:__________________________________
Title:_________________________________
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
By:____________________________________
Name:__________________________________
Title:_________________________________
PARIBAS
By:____________________________________
Name:__________________________________
Title:_________________________________
BANKERS TRUST COMPANY
By:____________________________________
Name:__________________________________
Title:_________________________________
MEESPIERSON CAPITAL CORP.
By:____________________________________
Name:__________________________________
Title:_________________________________
BANK OF AMERICA, N.A.
By:____________________________________
Name:__________________________________
Title:_________________________________
BARCLAYS BANK PLC
By:____________________________________
Name:__________________________________
Title:_________________________________
Schedule 1.01A
Investments
-----------
1. U.S. Government and government-sponsored securities
a. Direct obligations of the U.S. government-including Treasury Bills,
Notes and Bonds.
b. Government-sponsored Agency securities as follows:
- Government National Mortgage Agency (GNMA)
- Federal National Mortgage Association (FNMA)
- Student Loan Marketing Association (SLMA)
- Federal Home Loan Bank (FHLB)
- Federal Home Loan Mortgage Corporation (FHLMC)
- Federal Home Credit Banks (FFCB)
2. Money Market Funds
a Funds must be rated AAA or equivalent and have at least $1.0 billion in
assets with an average fund maturity not to exceed 90 days.
3. Corporate Debt Securities
a. Commercial paper (US or EURO)--Corporate issuers of commercial paper
having original maturities of not more than 180 days. Must be rated A-1/P-1 or
equivalent.
4. Bank Related Securities (banks rated AA or equivalent with assets of at
least $10.0 billion).
a. Certificates of deposit
b. Bankers acceptances
c. Time deposits
d. Eurodollar time deposits up to 180 days (incl. overnight sweep accounts)
e. Overnight Bank Loan Participations (must be A-1/P-1 commercial paper
rated companies or be fully guaranteed by parent company with an A-1/P rating)
5. Repurchase Agreements - Securities must be with major banks or dealers
that are recognized as Primary Dealers by the Federal Reserve Bank of New York.
Collateral for the transactions must be U.S. Treasury or Agency securities
collateralized at 102% of value.
INVESTMENT CONCENTRATION LIMITS - Investments may be made only in securities for
which there are consistent and adequate secondary markets or that are
immediately liquid.
1. Money Market Funds - No cumulative limit, however investments may not
exceed 10% of a fund's assets.
2. U.S. Government and government-sponsored securities - No limit.
3. Foreign securities - Investments in foreign securities (non-U.S. but
including U.S. branches of foreign banks) will be limited to 30% with no single
issuer and/or country exceeding the lower of 5% of the portfolio or $5 million
(except for Euro-commercial paper at the lower of 10% of the portfolio or $10
million).
4. All other investments/issuers - Maximum expose is 10% of the portfolio up
to $10 million.
MATURITY - At a minimum, maturities shall be structured to meet the funding
requirements of the Company.
1. No investment may exceed one year to maturity.
2. The weighted average maturity of the portfolio may not exceed six months.
3. 25% of the portfolio must mature within 30 days.
4. 10% of the portfolio must mature within 7 days.
OTHER
1. Securities denomination - All securities must be dollar-denominated.
2. Securities lending - Securities will not be lent.
3. Unrated securities - No unrated company/securities will be acquired.
4. Brokers and dealers - a sufficient number of business relationships
should be maintained to assure competitive pricing, information flow and cost
effective execution of the Company's business.
5. Fixed/floating rate securities - both are allowed, but the maturity of
the security must still be under one year.
Schedule 2.01
Lenders Commitments
- ------- -----------
The Chase Manhattan Bank $27,500,000.00
Barclays Bank PLC $27,500,000.00
Paribas $27,500,000.00
Deutsche Bank AG $27,500,000.00
MeesPierson Capital Corp. $20,000,000.00
Bank of America, N.A. $20,000,000.00
--------------
TOTAL $150,000,000.00
Schedule 3.04
Commencing with the 1999 Form 10-K, Borrower will account for its 50% ownership
in Triton International Oil Corporation ("TIOC") using the equity method
instead of the pro rata consolidation method. For purposes of the 1999 Form
10-K, Borrower will reflect its investment in TIOC at December 31, 1999 as an
equity investment in the consolidated balance sheet. The December 31, 1998
consolidated balance sheet will be reclassified to conform to the 1999
presentation.
Schedule 3.06
Disclosed Matters
-----------------
Litigation and Environmental Matters
In re: Triton Energy Limited Securities Litigation. Consolidated lawsuits filed
in the United States District Court for the Eastern District of Texas, Texarkana
Division, against the Borrower and Thomas G. Finck and Peter Rugg, in their
capacities as Chairman and Chief Executive Officer and Chief Financial Officer,
respectively. The complaint alleges violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder, and negligent misrepresentation in connection with disclosures
concerning the Company's properties, operations, and value relating to a
prospective sale of the Company or of all or a part of its assets.
Operating Industries, Inc. One of Borrower's former domestic oil and gas
subsidiaries (dissolved) has been named as a potentially responsible party for
the clean-up of the Monterey Park, California, Superfund site operated by
Operating Industries, Inc.
Hite and Nordell International Resources vs. Triton. Lawsuit by David A. Hite,
Nordell International Resources Ltd., and International Veronex Resources, Ltd.
against the Borrower, Triton Energy Corporation and Triton Indonesia, Inc. The
lawsuit was tried and the jury found in favor of the plaintiffs and assessed
compensatory damages in the amount of approximately $700,000 and punitive
damages in the amount of approximately $11 million.
Also pending are lawsuits involving Borrower and the other named defendants in
the above listed Hite lawsuit involving coverage issues under insurance
policies. The lawsuits are (1) American International Specialty Lines Ins. vs.
the Borrower, Triton Energy Corporation and Triton Indonesia, Inc.; Cause No.
BC220090, Superior Court, CA, and (2) Triton Energy Limited, et al. vs. Sphere
Drake Insurance, PLC, et al. Dallas, County, Texas [insurers have removed to
federal court].
Aaron Sherman, et al vs Triton Energy Corporation et al. Lawsuit filed in the
___ Judicial District, Dallas County, Texas against the Borrower, Triton Energy
Corporation, and Messrs. Finck, Rugg and Holland alleging as causes of action
fraud and negligent misrepresentation in connection with disclosures concerning
the prospective sale of the Borrower or of all or a part of its assets.
Maria Ninfa Diaz vs. Triton Colombia, Inc., TOTAL, BP and Ecopetrol. Triton
Colombia Inc. is a defendant, together with Total, BP and Ecopetrol in a civil
action filed in February, 1997 in the 8th Judicial Circuit Court in Bogota by
Ninfa Diaz Toloza. The plaintiff's claim arises out of the flaring of natural
gas from the Cusiana CPF and the Cupiagua CPF and alleges (1) damage to the
environment, (2) inappropriate use of a natural resource, (3) hazard to the
people and animal life of the area, (4) interruption to the tranquillity,
intimacy and quality of life, (5) reduction in the bovine livestock and (6)
noise pollution. In discovery stage.
Juvenal Huertas Romero vs. Triton Colombia, Inc., Case No. 33492, 6th Judicial
Labor Circuit of Bogot . Suit seeking damages of Col$50,000,000 for wrongful
termination; etc. In discovery stage.
BP Exploration Company (Colombia) Ltd. has informed the Borrower that a "popular
action" was instituted against the Ministry of Environment of Colombia alleging
that the Ministry issued an environmental license permitting the water injection
project to proceed without conducting a thorough analysis and evaluation of the
environmental impact of the water injection to the natural resources. BP is
currently evaluating its alternatives to intervene in the action.
SCHEDULE 3.14
SECTION 3.14 - LIST OF SUBSIDIARIES
-----------------------------------
THE FOLLOWING ARE THE SUBSIDIARIES OF THE COMPANY AS OF THE DATE OF THIS
AGREEMENT:
Jurisdiction of Jurisdiction where
--------------- ------------------
Name Organization Qualified
- ---- ------------ ---------
Inlet North Sea Corporation Delaware
Inlet Oil & Mineral Company (U.K.) Limited U.K.
North Central Aviation, Inc. Delaware
Oil & Gas Colombia GmbH Germany Colombia
Servion, Inc. Delaware
TriBlora Indonesia B.V. Netherlands
Triton Air Holdings, Inc. Delaware
Triton Algeria, Inc. Cayman Islands
Triton Angola, Inc. Cayman Islands
Triton Asia Holdings, Inc. Cayman Islands
Triton Australia, Inc. Cayman Islands Australia
Triton Brazil, Inc. Cayman Islands
Triton Cambodia, Inc. Cayman Islands
Triton China Resources, Inc. Cayman Islands
Triton China, Inc. LLC Cayman Islands
Triton Colombia, Inc. Cayman Islands Colombia
Triton Domestic Oil & Gas Corp. Nevada
Triton Ecuador, Inc. LLC Cayman Islands
Triton Energy Corporation Delaware Texas
Triton Equatorial Guinea, Inc. Cayman Islands [Equatorial Guinea
in process]
Triton Exploration (Malaysia) Sdn. Bhd. Malaysia
Triton Exploration Services, Inc. Delaware Texas
Triton Financial Services, Inc. Cayman Islands
Triton Guatemala S.A. B.V.I.
Triton Hellas Exploration and Exploitation
of Hydrocarbons Anonymous Industrial Technical
and Commercial Company Greece
Triton Holdings (U.K.) Limited U.K.
Triton Indonesia Resources, Inc. Cayman Islands
Triton Indonesia, Inc. Delaware
Triton International Finance, Inc. Cayman Islands
Triton International Oil Corporation,
a Delaware corporation Delaware
Triton International Petroleum, Inc. Cayman Islands
Triton Italy, Inc. Cayman Islands Italy
Triton Madagascar, Inc. Cayman Islands Madagascar
Triton Mediterranean Oil & Gas N.V. Netherlands
Triton Oil (GB) Limited U.K.
Triton Oil & Gas GmbH Germany
Triton Oman Resources, Inc. Cayman Islands Oman
Triton Oman, Inc. Cayman Islands
Triton Resources (UK) Limited U.K.
Triton Resources Argentina, Inc. Cayman Islands
Triton Tunisia, Inc. Cayman Islands
Triton Ventures, Inc. Cayman Islands
Also own 50% of Triton International Oil Corporation, a Cayman Islands company,
which owns 100% of:
Triton Oil Company of Thailand (JDA) Limited, incorporated in Cayman Islands and
qualified in Malaysia, Thailand, and
Triton Oil Company of Thailand Ltd. Co., incorporated in Texas and qualified in
Thailand, which owns 50% of :
Carigali-Triton Operating Co. SDN.BHD, a Malaysia corporation
SCHEDULE 3.15
OUTSIDE LETTERS OF CREDIT
-------------------------
EXPIRATION DATE ISSUER BENEFICIARY FACE AMOUNT
--------------- ------ ----------- -----------
9/30/00 MeesPierson Shell Overseas Co. 725,029
9/30/00 MeesPierson Shell Overseas Co. 695,027
10/14/00 Banque Paribas Public Petroleum 10,683,012
Corp. - Greece
3/22/00 Union Bank St. Paul Fire &
Marine Insurance 100,000
9/8/00 Societe Generale Public Petroleum 4,202,515
Corp. - Greece
THE AMOUNT OF THE OUTSIDE LC EXPOSURE IS $16,405,583.
SCHEDULE 6.01
EXISTING INDEBTEDNESS
---------------------
DESCRIPTION AMOUNT MATURITY
Export-Import Bank term loan facility 13,540,712 Jan. 15, 2001
Senior notes 8 3/4 199,946,833 April 15, 2002
Senior notes 9 1/4 200,000,000 April 15, 2005
Note payable to Triton Financial Services, Inc. (a Subsidiary) in the amount of
$14,545,356.
Note payable to Triton Italy, Inc. (a Subsidiary) in the amount of $280,915.
SCHEDULE 6.02
EXISTING LIENS
--------------
Pursuant to the Shareholders Agreement with ARCO JDA Limited and Atlantic
Richfield Company (the "ARCO Shareholders Agreement"), the transfer of the
shares of any Subsidiary holding the Company's interest in Triton International
Oil Corporation is subject to a right of first refusal. This does not apply to a
transaction involving a merger of, or a sale of the shares of, the ultimate
parent company.
Triton Oil Company of Thailand and Federated Consultant Limited are parties to
an Assignment of Overriding Royalty Interest dated march 25, 1993, as amended
pursuant to a Consulting Agreement among Triton Energy Corporation, Triton Oil
Company of Thailand and Federated Consultant Limited dated January 3, 1996 and
Addendum to Consulting Agreement Triton Energy Corporation, Triton Oil Company
of Thailand and Federated Consultant Limited dated July 19, 1996.
SCHEDULE 6.08
EXISTING RESTRICTIVE AGREEMENTS
-------------------------------
None
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of February 29,
2000 (as amended and in effect on the date hereof, the "Credit Agreement"),
among Triton Energy Limited, the Lenders named therein and The Chase Manhattan
Bank, as Administrative Agent for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in Letters of Credit and LC Disbursements held by the Assignor on
the Assignment Date, but excluding accrued interest and fees to and excluding
the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be
a party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned of
Facility/Commitment (set forth,
Principal to at least 8 decimals, as a
Amount Assigned percentage of the Facility and
the aggregate Commitments of
all Lenders thereunder)
----------
Facility
- --------
Commitment Assigned: $ %
Revolving Loans:
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
------------------
By:
Name:
Title:
[Name of Assignee], as Assignee
------------------
By:
Name:
Title:
The undersigned hereby consents to the within assignment: (8)
TRITON ENERGY LIMITED THE CHASE MANHATTAN BANK,
as Administrative Agent,
By: By:
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK,
as Issuing Bank
By:
Name:
Title:
(8) Consents to be included to the extent required by
Section 9.04(b) of the Credit Agreement.
EXHIBIT B-1
________, 2000
To the Lenders and the Administrative Agent
from time to time parties to the Credit Agreement and
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Gentlemen:
We have acted as special counsel to Triton Energy Limited, a Cayman Islands
company ("Borrower"), in connection with that certain Credit Agreement dated of
even date herewith (the "Credit Agreement"), among Borrower, the Lenders named
therein, and The Chase Manhattan Bank, as Administrative Agent. Capitalized
terms used herein and not otherwise defined shall have the same meanings
assigned to them in the Credit Agreement.
In our examination we have assumed the genuineness of all signatures other
than the Borrower's, due execution and delivery by all parties other than the
Borrower of all documents submitted to us, the authenticity of all documents
submitted to us as originals and the conformity to authentic original documents
of all documents submitted to us as certified, conformed or photostatic copies.
As to questions of fact material to this opinion, we have relied, to the extent
we deem appropriate, upon the certificates of governmental officials. As
special counsel for Borrower, we have examined the Credit Agreement and such
other documents and have conducted such other investigations of fact and law as
we consider necessary to enable us to give this opinion.
Based upon the foregoing and subject in all respects to the qualifications,
limitations, conditions, assumptions and exceptions herein expressed, it is our
opinion that:
1. Each of the Borrower and its Material Subsidiaries (i) to our
current actual knowledge, without independent investigation, qualified as a
foreign corporation and to do business in and in good standing in each
jurisdiction where failure to qualify would have a Material Adverse Effect
(other than Equatorial Guinea); and (ii) to our current actual knowledge,
without independent investigation, has the requisite corporate power and
authority to own its properties, to lease the property it operates under lease,
and to conduct its business as presently conducted.
2. The execution, delivery and performance of the Credit Agreement by
Borrower (I) will not, violate any law or regulation, or, to our current actual
knowledge, any order or decree, of any court or governmental instrumentality of
the State of New York, the State of Texas or the United States of America; (ii)
will not, to our current actual knowledge, without independent investigation,
conflict with or result in the breach or termination of, or constitute a default
under, any indenture, mortgage, deed of trust, lease, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or any of its
assets, or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries; (iii) will not, to our current actual
knowledge, without independent investigation, result in the creation or
imposition of any Lien upon any of the property of Borrower or any of its
Subsidiaries, pursuant to any such agreement or instrument referred to in clause
(ii) above; and (iv) do not require the consent or approval of, or registration
or filing with, or any other action by, any governmental body, agency, authority
of the State of New York, the State of Texas or United States of America except
such as have been obtained or made and are in full force and effect or, to our
current actual knowledge without independent investigation, any other Person,
other than those previously obtained and in full force and effect or as
disclosed in the Loan Documents.
3. The Credit Agreement has been duly executed and delivered by or on
behalf of Borrower. Assuming the corporate power and due authorization of
Borrower and that the execution, delivery and performance of the Credit
Agreement is not in contravention of any provision of its Memorandum and
Articles of Association, the Credit Agreement constitutes a valid and binding
agreement of Borrower enforceable in accordance with its terms.
4. Neither the Borrower nor, to our current actual knowledge, without
independent investigation, any of its Subsidiaries is an "investment company" as
defined in the Investment Company Act of 1940, as amended. Neither the Borrower
nor any of its Subsidiaries is a 'holding company" as defined in our subject to
regulation under the Public Utility Holding Company Act of 1934.
5. To the best of our current actual knowledge, without independent
investigation, no action, claim or proceeding, other than as set forth in the
Loan Documents, is now pending or threatened against Borrower, at law, in equity
or otherwise, before any Governmental Authority, which, if determined adversely,
could reasonably be expected to have a Material Adverse Effect or that involve
the Credit Agreement or the Loan Documents.
The opinions set forth above are limited by, subject to and based on the
following:
(a) The opinions are limited in all respects to the laws of the State
of Texas, State of New York and applicable federal law. We are licensed to
practice law in the State of New York and Texas only and do not hold ourselves
out to be experts on the laws of any jurisdiction other than the States of New
York and Texas and the United States of America.
(b) With respect to the opinions expressed in paragraphs 1(i), 1(ii),
2(i) through (iv) and 5 above, we advise you that we act only as special counsel
to Borrower for certain matters and do not represent them in all of their legal
matters. "Current actual knowledge" as expressed therein means that no
information has come to the attention of the attorneys of this firm currently
engaged in this representation that would give us present knowledge of the
existence or absence of facts that would render the opinions expressed in
paragraphs 1(i), 1(ii), 2(i) through (iv) and 5 above to be untrue. "Without
independent investigation" as expressed therein means that we have not
investigated or reviewed material which is not in our possession as a result of
our retention in connection with this loan facility or other matters for which
we have been presently retained by the Borrower.
(c) Our opinions set forth in paragraph 3 above concerning the
enforceability of the Credit Agreement may be limited by and are subject to (i)
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, marshaling and similar laws affecting the enforcement of creditors'
rights and remedies generally (including but not limited to such as may deny
giving effect to waivers or debtors' rights), (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and (iii) other applicable federal and state laws, statutes,
ordinances, rules, regulations, judicial decisions and constitutional
requirements may delay but should not materially diminish the practical
realization of the enforceability of such obligation, right or remedy.
(d) We express no opinion as to (i) the enforceability of any
particular provision of the Credit Agreement (A) against any party other than
Borrower, (B) relating to waivers of defenses, of rights to trial by jury, or
rights to object to jurisdiction or venue and other rights or benefits bestowed
by operation of law, (C) waivers of provisions which are not capable of waiver
under applicable law, (D) grants of powers of attorney, or (E) exculpation
clauses, indemnity clauses to the extent violative of public policy or clauses
relating to releases or waivers of unmatured rights or claims, or (ii) the
availability of any specified equitable relief of any kind.
(e) The opinions contained herein are limited to the matters expressly
set forth in paragraphs 1 through 5 above, and no opinion may be implied or
inferred beyond the matters expressly so stated.
(f) The opinions herein expressed are given as of the date hereof and
we assume no obligation to update or supplement such opinion to reflect any
facts or circumstances that may hereafter come to our attention or any changes
in law which may hereafter occur.
(g) The opinions herein expressed are for the benefit of the Lenders
and the Administrative Agent and their successors and assigns and may be relied
upon only by the Lenders and the Administrative Agent and their successors and
assigns and only in consummating the transactions evidenced by the Credit
Agreement.
Very truly yours,
JACKSON WALKER L.L.P.
By: _________________________________________
Lawrence A. Waks, Partner
By: _________________________________________
Bryan C. Birkeland, Partner
EXHIBIT B-2
WALKERS
Attorneys-at-Law
WALKER HOUSE, P.O. BOX 265
GEORGE TOWN, GRAND CAYMAN
CAYMAN ISLANDS
TEL: (345) 949-0100 FAX: (345) 949-7886
Internet:- walker@candw.ky
Our ref:GWP/dw/T183-10663
January[ ], 2000
THE CHASE MANHATTAN BANK
ONE CHASE MANHATTAN PLAZA
8TH FLOOR, NEW YORK, NEW YORK
10018
(THE "BANK")
Dear Sirs,
We have been asked to provide this legal opinion to you with regard to the laws
of the Cayman Islands in relation to the Credit Agreement dated ________, 2000
being entered into by TRITON ENERGY LIMITED (the "Company"), the Lenders named
therein and the Bank as Administrative Agent (the "Agreement").
For the purposes of giving this opinion, we have examined the documents listed
in Schedule 1 hereto.
In giving this opinion we have relied upon the assumptions set out in Schedule 2
hereto, which we have not independently verified.
We are Attorneys-at-Law in the Cayman Islands and express no opinion as to any
laws other than the laws of the Cayman Islands in force and as interpreted at
the date hereof. Except as explicitly stated herein, we express no opinion in
relation to any representation or warranty contained in the Agreement nor upon
the commercial terms of the transactions contemplated by the Agreement.
Based upon the foregoing examinations and assumptions and upon such searches as
we have conducted and having regard to legal considerations which we deem
relevant, and subject to the qualifications set out in Schedule 3 hereto, we are
of the opinion that under the laws of the Cayman Islands:
1. The Company is a company duly incorporated, validly existing and in
good standing under the laws of the Cayman Islands and has full power and legal
right to execute and deliver the Agreement and to perform the provisions of the
Agreement to be performed on its part.
2. The Agreement has been duly authorized and executed and when delivered
by the Company, will constitute the legal, valid and binding obligations of the
Company enforceable in accordance with its terms.
3. The execution, delivery and performance of the Agreement, the
consummation of the transactions contemplated thereby and the compliance by the
Company with the terms and provisions thereof do not:
(i) contravene any law or regulation of the Cayman Islands applicable
to the Company; or
(ii) contravene the Memorandum and Articles of Association of the
Company.
4. Neither the execution, delivery or performance of the Agreement nor the
consummation or performance of any of the transactions contemplated thereby by
the Company, requires the consent or approval of, the giving of notice to, or
the registration with, or the taking of any other action in respect of any
Cayman Islands governmental or judicial authority or agency.
5. The law chosen by the Agreement to govern its interpretation would be
upheld as a valid choice of law in any action on that document in the courts of
the Cayman Islands.
6. There are no stamp duties (other than the stamp duties mentioned in
qualification 2 in Schedule 3 hereto), income taxes, withholdings, levies,
registration taxes, or other duties or similar taxes or charges now imposed, or
which under the present laws of the Cayman Islands could in the future become
imposed, in connection with the enforcement or admissibility in evidence of the
Agreement or on any payment to be made by the Company or any other person
pursuant to the Agreement.
7. None of the parties to the Agreement (other than the Company) is or
will be deemed to be resident, domiciled or carrying on business in the Cayman
Islands by reason only of the execution, delivery, performance or enforcement of
the Agreement.
8. A judgement obtained in a foreign court will be recognized and enforced
in the courts of the Cayman Islands without any re-examination of the merits:
(a) at common law, by an action commenced on the foreign judgement debt
in the Grand Court of the Cayman Islands, where the judgement is final and in
respect of which the foreign court had jurisdiction over the defendant according
to Cayman Islands conflict of law rules and which is conclusive, for a
liquidated sum not in respect of penalties or taxes or a fine or similar fiscal
or revenue obligations, and which was neither obtained in a manner, nor is of a
kind enforcement of which is contrary to natural justice or the public policy of
the Cayman Islands; or
(b) by statute, registration in the Grand Court of the Cayman Islands
and execution as if it were a judgement of the Grand Court, where the judgement
is a judgement of a superior court of any state of the Commonwealth of Australia
which is final and conclusive for a sum of money not in respect of taxes or
other charges of a like nature or in respect of a fine, penalty or revenue
obligation and which remains enforceable by execution in that jurisdiction.
9. It is not necessary or advisable under the laws of the Cayman Islands
that the Agreement or any document relating thereto be registered or recorded in
any public office or elsewhere in the Cayman Islands in order to ensure the
validity, effectiveness or enforceability of the Agreement.
10. The Company has executed an effective submission to the jurisdiction
of the courts of the jurisdiction specified in the Agreement.
11. The Company is subject to civil and commercial law with respect to its
obligations under the Agreement and neither the Company nor any of its assets is
entitled to immunity from suit or enforcement of a judgment on the grounds of
sovereignty or otherwise in the courts of the Cayman Islands in proceedings
against the Company in respect of any obligations under the Agreement, which
obligations constitute private and commercial acts rather than governmental or
public acts.
12. There are no actions, suits or proceedings pending against the Company
before any court in the Cayman Islands and no steps have been, or are being,
taken to compulsorily wind up the Company and no resolution to voluntarily wind
up the Company has been adopted by its members.
13. A judgment of a court in the Cayman Islands may be expressed in a
currency other than Cayman Islands dollars.
14. On a liquidation of the Company, claims against the Company under the
Agreement to which it is party will rank at least pari passu with the claims of
---- -----
all other unsecured creditors (other than those preferred by law).
This opinion is limited to the matters referred to herein and shall not be
construed as extending to any other matter or document not referred to herein.
This opinion is given solely for your benefit and the benefit of your legal
advisers acting in that capacity in relation to this transaction and may not be
relied upon by any other person without our prior written consent. This opinion
is governed by and shall be construed in accordance with the laws of the Cayman
Islands.
Yours faithfully,
WALKERS
SCHEDULE 1
LIST OF DOCUMENTS EXAMINED
(1) the Memorandum and Articles of Association of the Company;
(2) a Certificate of Good Standing in respect of the Company dated
__________, 2000 issued by the Registrar of Companies;
(3) an executed copy of a Secretary's Certificate dated ______, 2000
containing certified resolutions of the Board of Directors of the Company (the
"Resolutions");
(4) the executed Agreement; and
(5) such other documents as we have considered necessary for the
purposes of rendering this opinion.
SCHEDULE 2
ASSUMPTIONS
The opinions hereinbefore given are based upon the following assumptions:
--
1. There are no provisions of the laws of any jurisdiction outside the
Cayman Islands which would be contravened by the execution or delivery of the
Agreement and that, in so far as any obligation expressed to be incurred under
the Agreement is to be performed in or is otherwise subject to the laws of any
jurisdiction outside the Cayman Islands, its performance will not be illegal by
virtue of the laws of that jurisdiction.
2. The Agreement is within the capacity and powers of and have been or
will be duly authorised, executed and delivered by each of the parties thereto
(other than the Company) and constitute or will, when executed and delivered,
constitute the legal, valid and binding obligations of each of the parties
thereto enforceable in accordance with their terms as a matter of the laws of
all relevant jurisdictions (other than the Cayman Islands).
3. The choice of the laws of the jurisdiction selected to govern the
Agreement has been made in good faith and will be regarded as a valid and
binding selection which will be upheld in the courts of that jurisdiction and
all other relevant jurisdictions (other than the Cayman Islands).
4. All authorisations, approvals, consents, licences and exemptions
required by and all filings and other requirements of each of the parties to the
Agreement outside the Cayman Islands to ensure the legality, validity and
enforceability of the Agreement have been or will be duly obtained, made or
fulfilled and are and will remain in full force and effect and that any
conditions to which they are subject have been satisfied.
5. All conditions precedent contained in the Agreement have been or will
be satisfied or waived.
6. No disposition of property effected by the Agreement is made wilfully
to defeat an obligation owed to a creditor and at an undervalue.
7. The Company was on the date of execution of the Agreement able to pay
its debts as they became due from its own moneys, and that any disposition or
settlement of property effected by the Agreement is made in good faith and for
valuable consideration.
8. The Agreement has not been nor will be executed or delivered in the
Cayman Islands.
9. All original documents are authentic, that all signatures and seals are
genuine, that all documents purporting to be sealed have been so sealed, that
all copies are complete and conform to their original and that the Agreement
conform in every material respect to the latest drafts of the same produced to
us.
10. The Minute Book of the Company examined by us on __________, 2000 at
its Registered Office contains a complete and accurate record of the business
transacted by it.
11. The corporate records of the Company examined by us on __________,
2000 at its Registered Office constitute its complete and accurate corporate
records and that all matters required by law to be recorded therein are so
recorded.
12. The Cause List and the Register of Writs and other Originating Process
of the Cayman Islands Grand Court maintained by the Clerk of the Courts examined
by us at the Courts Office on _________, 2000, constitute a complete record of
the proceedings before the Grand Court of the Cayman Islands.
13. None of the parties to the Agreement is
(a) a "person in Iraq" as that term is defined in The Iraq and Kuwait
(United Nations Sanctions) (Dependent Territories) Order 1990 or an "Iraqi
person" as defined in The Iraq (United Nations) (Sequestration of Assets)
(Dependent Territories) Order 1993 or a person resident in the Republic of Iraq
for the purposes of The Caribbean Territories (Control of Gold, Securities,
Payment and Credits: Kuwait and Republic of Iraq) Order 1990; or
(b) a "person connected with Libya" as that term is defined in The
Libya (United Nations Sanctions) (Dependent Territories) Order 1992.
14. abThe meeting of the Board of Directors at which the Resolutions were
duly adopted was called and held in accordance with the Articles of Association
of the Company.
SCHEDULE 3
QUALIFICATIONS
The opinions hereinbefore given are subject to the following qualifications:
1. The term "enforceable" as used above means that the obligations assumed
by the Company under the Agreement are of a type which the courts of the Cayman
Islands enforce; it does not mean that those obligations will necessarily be
enforced in all circumstances in accordance with their terms. In particular:
(a) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganisation and other laws of general application relating to or affecting
the rights of creditors;
(b) enforcement may be limited by general principles of equity;
(c) claims may become barred under statutes of limitation or may be or
become subject to defenses of set-off or counterclaim;
(d) where obligations are to be performed in a jurisdiction outside the
Cayman Islands, they may not be enforceable in the Cayman Islands to the extent
that performance would be illegal under the laws of that jurisdiction;
(e) an award of a court of the Cayman Islands may be required to be
made in Cayman Islands dollars;
(f) to the extent that any provision of the Agreement is adjudicated to
be penal in nature, it will not be enforceable in the courts of the Cayman
Islands; in particular, the enforceability of any provision of the Agreement
which imposes additional obligations in the event of any breach or default, or
of payment or prepayment being made other than on an agreed date maybe limited
to the extent that it is subsequently adjudicated to be penal in nature and not
an attempt to make a reasonable pre-estimate of loss;
(g) to the extent that the performance of any obligation arising under
the Agreement would be fraudulent or contrary to public policy, it will not be
enforceable in the courts of the Cayman Islands; and
(h) a Cayman Islands court will not necessarily award costs in
litigation in accordance with contractual provisions in this regard.
2. Cayman Islands stamp duty will be payable if the Agreement is executed
in, brought to, or produced before a court of the Cayman Islands. Such duty
would be nominal except in the case of:
(a) a legal or equitable mortgage or charge of immovable property or a
debenture:
(i) where the sum secured is CIS300,000 (US$360,000) or less, in
which case such duty would be 1% of the sum secured;
(ii) where the sum secured is more than CIS300,000 (US$360,000),
in which case such duty would be 1.5% of the sum secured;
(b) a legal or equitable mortgage of movable property (not including a
debenture), in which case such duty would be 1.5% of the sum secured;
(c) a bill of sale by way of security, in which case such duty would be
1 % of the sum secured;
PROVIDED that no duty shall be payable where the property is situated outside
the Cayman Islands and that in the case of a mortgage of moveable property
situated in the Cayman Islands granted by an exempted company or by an ordinary
non-resident company (as defined in the Companies Law (1995 Revision)) or by a
body corporate incorporated outside the Cayman Islands, the maximum duty payable
shall be CI$500.00. (US$600.00).
3. A certificate, determination, calculation or designation of any party
to the Agreement as to any matter provided therein might be held by a Cayman
Islands court not to be conclusive, final and binding, notwithstanding any
provision to that effect therein contained, if, for example, it could be shown
to have an unreasonable, arbitrary or improper basis or in the event of manifest
error.
4. If any provision of the Agreement is held to be illegal, invalid or
unenforceable, severance of such provision from the remaining provisions will be
subject to the discretion of the Cayman Islands courts.
5. To maintain the Company in good standing under the laws of the Cayman
Islands, annual filing fees must be paid and returns made to the Registrar of
Companies.
6. Any term of the Agreement may be amended orally by the parties thereto,
notwithstanding provisions to the contrary contained therein.
7. Notwithstanding any purported date of execution in any of the
Agreement, the rights and obligations therein contained take effect only on the
actual execution and delivery thereof but the Agreement may provide that they
have retrospective effect as between the parties thereto alone.
8. The effectiveness of terms in the Agreement excusing any party from a
liability or duty otherwise owed or indemnifying that party from the
consequences of incurring such liability or breaching such duty are limited by
law.
EXHIBIT C
BORROWING REQUEST
[DATE]
The Chase Manhattan Bank, as Administrative Agent under the Credit
Agreement referred to below
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Michael Cerniglia
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement dated as of February 29,
2000 (such Credit Agreement, as it may hereafter be amended or otherwise
modified from time to time, being referred to herein as the "Credit Agreement",
the terms defined therein being used herein as therein defined) among Triton
Energy Limited, a Cayman Islands company, other financial institutions party
("Lenders"), and The Chase Manhattan Bank, as administrative agent for such
Lenders ("Administrative Agent") and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.03 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is , _________.
(ii) The Type of Advances comprising the Proposed Borrowing is [ABR
Loans] [Eurodollar Loans].
(iii) The aggregate amount of the Proposed Borrowing is
$____________________.
(iv) The location and number of the Borrower account to which funds are
to be transferred is ___________.
(v) The Borrowing Base Utilization on the Business Day of the Proposed
Borrowing (after giving effect to the Proposed Borrowing) is _____%.
(vi) The amount of Outside LC Exposure on the Business Day of the
proposed Borrowing is ___________________.
[(vii) The Interest Period for each Eurodollar Loan made as part of the
Proposed Borrowing is _____ months.]
Very truly yours,
TRITON ENERGY LIMITED
By:_______________________________________
Name: ____________________________________
Title: ____________________________________
EXHIBIT D
INTEREST ELECTION REQUEST
[Date]
The Chase Manhattan Bank, as Administrative Agent under the Credit
Agreement referred to below
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Michael Cerniglia
Ladies and Gentlemen:
The undersigned refers to the Credit Agreement dated as of February 29,
2000 (such Credit Agreement, as it may hereafter be amended or otherwise
modified from time to time, being referred to herein as the "Credit Agreement",
the terms defined therein being used herein as therein defined) among Triton
Energy Limited, a Cayman Islands company, other financial institutions party
("Lenders"), and The Chase Manhattan Bank, as administrative agent for such
Lenders ("Administrative Agent") and hereby gives you notice, irrevocably,
pursuant to Section 2.06 of the Credit Agreement that the undersigned hereby
makes an Interest Election Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing as
required by Section 2.06 of the Credit Agreement:
(i) The Borrowing (or portion thereof)* to which this Interest Election
applies is _______________.
(ii) The effective date (which must be a Business Day) of the election
is ______________________.
(iii) The resulting Borrowing will be an [ABR Borrowing] [Eurodollar
Borrowing].
(iv) The Borrowing Base Utilization on the effective date of the
election is (after giving effect to any new Borrowings on such date) is __%.
[(v) The Interest Period Applicable to the Eurodollar Borrowing is
__________________________.]
*If this Interest Election applies to only a portion of a Borrowing, submit
another Interest Election for the remaining portion or portions.