EXHIBIT 10.37
CONSENT, WAIVER AND GUARANTY
THIS CONSENT, WAIVER AND GUARANTY ("this Consent") is made and entered
into effective as of March 25, 1996 (the "Effective Date") by and among TRITON
ENERGY CORPORATION, a Delaware corporation ("Borrower"), TRITON ENERGY
LIMITED, a Cayman Islands company and a wholly owned subsidiary of Borrower
("Triton Limited") and the FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF (individually referred to herein as a "Lender" and collectively
as "Lenders") and BANQUE PARIBAS HOUSTON AGENCY, as agent for the Lenders (in
such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower and the Lenders, with the Agent as Agent thereunder are
parties to a Credit Agreement, dated as of March 28, 1995, as amended by the
First Amendment thereto dated as of May 16, 1995, the Second Amendment thereto
dated as of August 11, 1995 and the Third Amendment thereto dated as of
September 29, 1995 (as so amended, the "Credit Agreement");
WHEREAS, Borrower has called a Special Meeting of Stockholders to be held
on March 25, 1996 to consider a proposed reorganization (the "Reorganization")
pursuant to which Triton Limited will become the parent holding company of the
Borrower through the merger (the "Merger") of TEL Merger Corp., a Delaware
corporation and a newly formed wholly owned subsidiary of Triton Limited
("Sub"), with and into the Borrower, as described in the proxy statement/joint
prospectus of Triton Limited and the Borrower dated February 23, 1996 (the
"Proxy Statement/Prospectus");
WHEREAS, in connection with the Reorganization, Triton Limited and the
Borrower propose to effect certain transactions among, or otherwise affecting,
certain Subsidiaries of Triton Limited and/or the Borrower, as described in
Exhibit "A", attached hereto and made a part hereof for all purposes (the
"Related Transactions");
WHEREAS, Borrower has requested that the Lenders consent to the
Reorganization, the Merger and the Related Transactions, and waive any
provision of the Credit Agreement to the extent required to permit the
consummation of the Reorganization, the Merger and the Related Transactions,
all as described more fully in the Proxy Statement/Prospectus and Exhibit "A"
hereto; and
WHEREAS, the Lenders and the Agent are willing to grant such request on
the terms provided for in this Consent;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and affirmed, Borrower, Triton Limited, the Lenders and the
Agent, each intending to be legally bound, hereby mutually agree as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to such terms in
the Credit Agreement.
2. Consent and Waiver With Respect to the Reorganization. The
Lenders hereby consent to, and grant any waiver of any provision of the Credit
Agreement to the extent required to permit, the Reorganization, the
consummation of the Merger pursuant to the Agreement and Plan of Merger dated
as of February 8, 1996 among the Borrower, Triton Limited and Sub, all as
described more fully in the Proxy Statement/Prospectus and the consummation of
the Related Transactions.
3. Guaranty of Triton Limited. Triton Limited hereby irrevocably and
unconditionally guarantees to the Lenders the prompt and full discharge by
Borrower of all of Borrower's covenants, agreements, obligations and
liabilities under the Credit Agreement and each other Loan Document including,
without limitation the due and punctual payment of all amounts which are or
may become due and payable by Borrower thereunder when and as the same shall
become due and payable (collectively, the "Borrower Obligations"). Triton
Limited acknowledges and agrees that, with respect to the Borrower
Obligations, such guaranty shall be a guaranty of payment and performance and
not of collection and shall not be conditioned or contingent upon the pursuit
of any remedies against Borrower. If Borrower shall default on the due and
punctual performance of any Borrower Obligation, including the full and timely
payment of any amount due and payable pursuant to any Borrower Obligation,
Triton Limited will forthwith perform or cause to be performed such Borrower
Obligation and will forthwith make full payment of any amount due with respect
thereto at its sole cost and expense.
The liabilities and obligations of Triton Limited pursuant to this
Section 3 are unconditional and absolute and, without limiting the generality
of the foregoing, shall not be released, discharged or otherwise affected by:
(i) any acceleration, extension, renewal, settlement, compromise, waiver
or release in any respect of the Credit Agreement or any other Borrower
Obligation by operation of law or otherwise;
(ii) the invalidity or unenforceability in whole or in part of the Credit
Agreement;
(iii) any modification or amendment of or supplement to the Credit Agreement
or any other Borrower Obligation;
(iv) any change in the corporate existence, structure or ownership of the
Borrower or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or any of its assets;
(v) any sale, exchange, release or surrender of, realization upon or
taking action otherwise in any manner and in any order in respect of the
Collateral or any other property at any time pledged or mortgaged by the
Borrower or any other Person to secure the Borrower Obligation; or
(vi) any other act, omission to act, delay of any act by any party to the
Credit Agreement or any other circumstance whatsoever that might, but for the
provisions of this Section 3, constitute a legal or equitable discharge of the
obligations of Triton Limited hereunder.
Triton Limited waives all presentments, demands for performance, protests
and notices, including without limitation notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness. Triton Limited assumes all responsibility for being and keeping
itself informed of the Borrowers' financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of any of the Borrower
Obligations and the nature, scope and extent of the risks which Triton Limited
assumes and incurs hereunder, and agrees that the Lenders shall have no duty
to advise Triton Limited of information known to them regarding such
circumstances or risks.
4. Representations of Borrower and Triton Limited.
(a)The execution, delivery and performance by Borrower and Triton Limited
of this Consent and the consummation of the transactions contemplated hereby:
(i) are within Borrower's and Triton Limited's respective corporate
powers;
(ii) have been duly authorized by all necessary corporate action,
including, without limitation, the consent of stockholders or shareholders
where required;
(iii) do not and will not (A) contravene Borrower's or Triton Limited's
certificate of incorporation or by-laws or other comparable governing
documents, (B) violate any other applicable Requirement of Law (including,
without limitation, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System), or any order or decree of any Governmental Authority
or arbitrator, (C) conflict with or result in the breach of, or constitute a
default under, or result in or permit the termination or acceleration of, any
Contractual Obligation of any Loan Party or any of the Material Subsidiaries,
or (D) result in the creation or imposition of any Lien upon any of the
property of any Loan Party or any of its Material Subsidiaries, other than
those in favor of the Agent pursuant to the Collateral Securities; and
(iv) do not require the consent of, authorization by, approval of, notice
to, or filing or registration with, any Governmental Authority or any other
Person, other than those which have been or will be, prior to the Effective
Date, obtained or made and copies of which in the case of those involving a
Governmental Authority have been or will be delivered to the Agent, and each
of which on the Effective Date will be in full force and effect.
(b) This Consent has been duly executed and delivered by each of
Borrower and Triton Limited. This Consent is the legal, valid and binding
obligation of each of Borrower and Triton Limited, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar law affecting creditors' rights
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding of law or in
equity).
(c) Borrower and Triton Limited jointly and severally further represent
and warrant that (i) all of the representations and warranties made by
Borrower in Article IV of the Credit Agreement and in each other Loan Document
are true and correct on and as of the date hereof, as though made on the date
hereof; (ii) Borrower has complied with all terms and conditions set forth in
the Credit Agreement and in each other Loan Document as of the date hereof;
and (iii) there has not occurred, and currently there exists no, Default or
Event of Default.
5. Conditions. The obligations of the Lenders and the Agent under
this Consent are subject to the condition precedent that this Consent shall
have been duly executed by Borrower and Triton Limited and delivered to the
Lenders, and each Lender and the Agent shall have executed a counterpart
hereof.
6. Legal Opinion. Not later than April 30, 1996, Borrower and Triton
Limited shall cause their counsel (who shall be reasonably acceptable to the
Agent) to deliver to each Lender and the Agent a favorable opinion as to such
matters pertaining to Sections 3 and 4 hereof that are requested by the Agent.
7. Ratification of Credit Agreement. All terms and provisions of the
Credit Agreement are hereby ratified and reaffirmed and shall remain in full
force and effect without interruption, change, or impairment of any kind.
8. General.
(a) Applicable Law. This Consent has been delivered and accepted in,
and shall be a contract made under and governed by the laws of the State of
New York.
(b) Submission to Jurisdiction; Service of Process. Any legal action
or proceeding with respect to this Consent or any document related hereto may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery
of this Consent, the Borrower and Triton Limited hereby accept for themselves
and in respect of their respective properties, generally and unconditionally,
the jurisdiction of the aforesaid courts. The parties hereto hereby
irrevocably waive any objection including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens, which
any of them may now or hereafter have to the bringing of any such action or
proceeding in such respective jurisdictions. The Borrower and Triton Limited
each irrevocably consents to the service of process of any of the aforesaid
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Borrower and, in the
case of Triton Limited, in care of the Borrower, at the Borrower's address
provided in the Credit Agreement. Nothing contained in this Section 8(b)
shall affect the right of the Agent, any Lender or any holder of a Revolving
Credit Note to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against the Borrower or Triton Limited
in any other jurisdiction.
(c) Binding Effect; Construction. This Consent shall be binding upon
and inure to the benefit of Borrower, Triton Limited and the Lenders and their
respective successors and assigns. This Consent is and shall be construed as
a Loan Document for all purposes.
(d) Payment of Expenses. Borrower and Triton Limited jointly and
severally agree to reimburse the Lenders for out-of-pocket expenses and will
pay fees of counsel on behalf of the Lenders reasonably incurred in the
preparation, and subsequent enforcement of this Consent.
(e) Headings. The Section and subsection headings of this Consent are
for convenience and shall not affect, limit or expand any term or provision
hereof.
(f) Counterparts. This Consent may be executed in as many
counterparts as may be deemed necessary or convenient, and each counterpart
shall be deemed an original. No one counterpart need be signed by all parties
hereto, but all such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Consent,
Waiver and Guaranty to be executed and delivered at Dallas, Texas by their
duly authorized officers, to be deemed effective as of the Effective Date.
TRITON ENERGY CORPORATION
By: /s/Peter Rugg
Peter Rugg
Senior Vice President and
Chief Financial Officer
TRITON ENERGY LIMITED
By: /s/Robert B. Holland, III
Robert B. Holland, III
Senior Vice President
BANQUE PARIBAS HOUSTON AGENCY, as the Agent and as a
Lender
By: /s/Mark M. Green
Mark M. Green
Vice President
By: /s/Barton Schouest
Barton Schouest
Group Vice President
UNION BANK
By:
Name:
Title:
By:
Name:
Title:
MEESPIERSON N.V.
By:
Name:
Title:
CHEMICAL BANK
By:
Name:
Title: