EXHIBIT 10.70
MONITORING AND OVERSIGHT AGREEMENT
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This MONITORING AND OVERSIGHT AGREEMENT (this "Agreement") is made and
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entered into effective as of September 30, 1998, among Triton Energy Limited, a
Cayman Islands company (the "Company"), and Hicks, Muse & Co. Partners, L.P., a
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Texas limited partnership (together with its successors, "HMCo").
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1. Retention; Defined Terms.
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(a) The Company hereby acknowledges that it has retained HMCo to
provide, and HMCo acknowledges that, subject to reasonable advance notice in
order to accommodate scheduling, HMCo will provide, financial oversight and
monitoring services to the Company as requested by the Company during the term
of this Agreement.
(b) Capitalized terms used but not defined herein and defined in the
Stock Purchase Agreement dated August 31, 1998, between the Company and HM4
Triton, L.P., a Cayman Islands exempted limited partnership ("Investor") (the
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"Stock Purchase Agreement"), shall have the meanings ascribed to such terms in
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the Stock Purchase Agreement.
2. Term.
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(a) The term of this Agreement shall continue until the earlier of (i)
the tenth anniversary of the date hereof, (ii) the date on which the Stock
Purchase Agreement is terminated if such date occurs prior to the First Closing
or (iii) the date on which Investor and its affiliates cease to own
beneficially, directly or indirectly, at least five percent of the Company's
outstanding ordinary shares (or any other securities into or for which such
shares may be converted or exchanged), determined after giving effect to the
conversion of all shares of 8% Preference Shares of the Company held by Investor
and its affiliates (such date on which the term of this Agreement terminates
herein referred to as the "Termination Date").
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(b) Notwithstanding any termination of this Agreement, (i) the rights
of the Indemnified Persons (as defined in Section 5 hereof) under Section 5
hereof shall survive any such termination of this Agreement, (ii) the Company
shall pay to HMCo (A) on the fifteenth (15th) day following the Termination
Date, amounts payable to HMCo as a Monitoring Fee for periods up to and
including the Termination Date which have not been paid as of the Termination
Date and (B) promptly (but not more than 10 days) after request by or notice
from HMCo, the Reimbursable Expenses for which HMCo has provided the Company
invoices or reasonably detailed descriptions relating to periods up to and
including the Termination Date which have not been paid as of the Termination
Date and (iii) the terms of this Agreement (including Section 7 hereof) shall
survive any such termination for the purpose of enabling HMCo to enforce its
rights set forth in this Section 2(b) and Section 5.
3. Compensation.
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(a) As compensation for HMCo's services under this Agreement, the
Company shall pay to HMCo an annual fee of $500,000 (the "Monitoring Fee"),
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which shall begin to accrue on the First Closing Date.
(b) The Monitoring Fee shall be payable, by wire transfer of
immediately available funds to the account described on Exhibit A hereto (or
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such other account as HMCo may hereafter designate in writing), in quarterly
installments on the fifteenth (15th) day of each January, April, July and
October during the term of this Agreement (each a "Payment Date"), beginning
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with the first Payment Date following the date hereof. The amount of each such
quarterly installment shall be the Monitoring Fee divided by 4 (the "Quarterly
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Fee Amount"), prorated on a daily basis for any partial calendar quarter during
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the term of this Agreement.
(c) All past due payments in respect of the Monitoring Fee shall bear
interest at the lesser of the highest rate of interest which may be charged
under applicable law or the prime commercial lending rate per annum of Chase
Manhattan Bank, N.A. or its successors (which rate is a reference rate and is
not necessarily its lowest or best rate of interest actually charged to any
customer) (the "Prime Rate") as in effect from time to time, plus 5%, from the
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due date of such payment to and including the date on which payment is made to
HMCo in full, including such interest accrued thereon.
4. Reimbursement of Expenses. In addition to the compensation to be
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paid pursuant to Section 3 hereof, the Company agrees to pay or reimburse HMCo
for all "Reimbursable Expenses," which shall consist of all reasonable
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disbursements and out-of-pocket expenses (including without limitation costs of
travel, postage, deliveries, communications, etc.) incurred by HMCo or its
affiliates for the account of the Company or in connection with the performance
by HMCo of the services contemplated by Section 1 hereof. Promptly (but not
more than 10 days) after request by or notice from HMCo, the Company shall pay
HMCo, by wire transfer of immediately available funds to the account described
on Exhibit A hereto (or such other account as HMCo may hereafter designate in
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writing), the Reimbursable Expenses for which HMCo has provided the Company
invoices or reasonably detailed descriptions. All past due payments in respect
of the Reimbursable Expenses shall bear interest at the lesser of the highest
rate of interest which may be charged under applicable law or the Prime Rate
plus 5% from the Payment Date to and including the date on which such
Reimbursable Expenses plus accrued interest thereon, are fully paid to HMCo.
5. Indemnification. The Company shall indemnify and hold harmless each
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of HMCo, its affiliates, and the respective directors, officers, partners,
members, controlling persons (within the meaning of Section 15 of the Securities
Act of 1933 or Section 20(a) of the Securities Exchange Act of 1934), if any,
agents and employees of HMCo and/or any of its affiliates (HMCo, its affiliates,
and such other specified persons being collectively referred to as "Indemnified
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Persons" and individually as an "Indemnified Person") from and against any and
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all claims, liabilities, losses, damages and expenses incurred by any
Indemnified Person (including reasonable fees and disbursements of the
respective Indemnified Person's counsel) which (A) are related to or caused by
or arise out of (i) actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by the Company or any of
its Subsidiaries or (ii) actions taken or omitted to be taken by an Indemnified
Person with the consent of the Company or any of its Subsidiaries, or in
conformity with instructions of the Company or any of its Subsidiaries or
actions or omissions of the Company or any of its Subsidiaries or (B) are
otherwise related to or arise out of HMCo's engagement hereunder, and will
reimburse each Indemnified Person for all reasonable costs and expenses,
including fees and disbursements of any Indemnified Person's counsel, as they
are incurred, in connection with investigating, preparing for, defending, or
appealing any action, formal or informal claim, investigation, inquiry or other
proceeding, whether or not in connection with pending or threatened litigation,
caused by or arising out of or in connection with HMCo's acting pursuant to the
engagement, whether or not any Indemnified Person is named as a party thereto
and whether or not any liability results therefrom. The Company will not,
however be responsible for any claims, liabilities, losses, damages, or expenses
pursuant to clause (B) of the preceding sentence that have resulted primarily
from HMCo's bad faith, gross negligence or willful misconduct. The Company also
agrees that neither HMCo nor any other Indemnified Person shall have any
liability to the Company for or in connection with such engagement except for
any such liability for claims, liabilities, losses, damages, or expenses
incurred by the Company that have resulted primarily from HMCo's bad faith,
gross negligence or willful misconduct. The Company further agrees that it will
not, without the prior written consent of HMCo, such consent not to be
unreasonably withheld, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnifications may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such claim, action, suit
or proceeding) unless such settlement, compromise or consent includes an
unconditional release of HMCo and each other Indemnified Person hereunder from
all liability arising out of such claim, action, suit or proceeding. THE
COMPANY HEREBY ACKNOWLEDGES THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO
ANY CLAIMS, LIABILITIES, LOSSES, DAMAGES OR EXPENSES THAT HAVE RESULTED FROM OR
ARE ALLEGED TO HAVE RESULTED FROM THE ACTIVE OR PASSIVE OR THE SOLE, JOINT OR
CONCURRENT ORDINARY NEGLIGENCE OF HMCO OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition to any rights that
HMCo and/or any other Indemnified Person may have at common law or otherwise and
shall remain in full force and effect following the completion of the engagement
or any termination of the engagement or this Agreement as provided in Section
2(b).
It is understood that, in connection with HMCo's engagement, HMCo may also
be engaged to act for the Company in one or more additional capacities, and that
the terms of this engagement or any such additional engagement may be embodied
in one or more separate written agreements. This indemnification shall apply to
the engagement specified in Section 1 hereof as well as to any such additional
engagement(s) (whether written or oral) and any modification of said engagement
or such additional engagement(s) and shall remain in full force and effect
following the completion or termination of said engagement or such additional
engagements.
The Company further understands that if HMCo is asked to furnish the
Company a financial opinion letter or act for the Company in any other formal
capacity, such further action may be subject to a separate agreement containing
provisions and terms to be mutually agreed upon.
6. Confidential Information. In connection with the performance of the
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services hereunder, HMCo agrees not to, and to use commercially reasonable
efforts to cause its officers, directors, employees, agents and representatives
acting on behalf of HMCo pursuant to this Agreement not to, divulge any
confidential information, secret processes or trade secrets disclosed by the
Company or any of its Subsidiaries to HMCo or any such person in connection with
the providing of services by HMCo (or any such person on HMCo's behalf) solely
in its capacity as a financial advisor pursuant to this Agreement, unless the
Company consents to the divulging thereof or such information, secret processes,
or trade secrets are publicly available or otherwise available to HMCo without
restriction or breach of any confidentiality agreement or unless required by any
governmental authority or in response to any valid legal process (in which case
HMCo will use commercially reasonable efforts to provide the Company with as
much advance notice as is reasonably practicable).
7. Governing Law; Jurisdiction and Venue. This Agreement shall be
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construed, interpreted, and enforced in accordance with the laws of the State of
Texas, excluding any choice-of-law provisions thereof. Each of the parties
hereby (a) irrevocably submits to the exclusive jurisdiction of the United
States Federal District Court for the Northern District of Texas, sitting in
Dallas County, Texas, the United States of America, in the event such court has
jurisdiction or, if such court does not have jurisdiction, to any district court
sitting in Dallas County, Texas, the United States of America, for the purposes
of any suit, action or proceeding arising out of or relating to this Agreement,
including any claims by any Indemnified Persons for indemnity pursuant to
Section 5 hereof, (b) waives, and agrees not to assert in any such suit, acting
or proceeding, any claim that (i) it is not personally subject to the
jurisdiction of such court or of any other court to which proceedings in such
court may be appealed, (ii) such suit, action or proceeding is brought in an
inconvenient forum or (iii) the venue of such suit, action or proceeding is
improper and (c) expressly waives any requirement for the posting of a bond by
the party bringing such suit, action or proceeding. Each of the parties
consents to process being served in any such suit, action or proceeding by
mailing, certified mail, return receipt requested, a copy thereof to such party
at the address in effect for notices hereunder, and agrees that such services
shall constitute good and sufficient service of process and notice thereof.
Nothing in this Section 7 shall affect or limit any right to serve process in
any other manner permitted by law.
8. Assignment. This Agreement and all provisions contained herein
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shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, neither this Agreement nor
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any of the rights, interests, or obligations hereunder shall be assigned (other
than with respect to the rights and obligations of HMCo, which may be assigned
to any one or more of its principals or Affiliates) by any of the parties
without the prior written consent of the other parties.
9. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and the signature of any
party to any counterpart shall be deemed a signature to, and may be appended to,
any other counterpart.
10. Other Understandings. All discussions, understandings, and
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agreements heretofore made between any of the parties hereto with respect to the
subject matter hereof are merged in this Agreement, which alone fully and
completely expresses the Agreement of the parties hereto. All calculations of
the Monitoring Fee and Reimbursable Expenses shall be made by HMCo and, in the
absence of mathematical error, shall be final and conclusive. All references to
"$" or dollar amounts will be to lawful currency of the United States of
America. All fees, expenses and other amounts payable to HMCo hereunder shall
be (i) payable in U.S. dollars and if such amounts were originally expressed in
any other currency, then unless otherwise provided herein such amounts shall be
converted to U.S. dollars at the official exchange rate published by the
government of such country to which such currency relates on the date of payment
or, if such government does not have a published exchange rate on the date of
payment, the applicable New York foreign exchange selling rate as published in
The Wall Street Journal on the date of payment or, if not published on the date
of payment, on the most recent previously published rate, (ii) grossed-up to
cover any withholding, value-added or other similar taxes, and (iii) paid by
wire transfer of immediately available funds to the account described on
Exhibit A hereto (or such other account as HMCo may hereafter designate in
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writing).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
HICKS, MUSE & CO. PARTNERS, L.P.
By: HM PARTNERS, INC.,
its General Partner
By: /s/ Daniel S. Dross
Daniel S. Dross
Senior Vice President
TRITON ENERGY LIMITED
By: /s/ Robert B. Holland, III
Robert B. Holland, III
Chief Executive Officer,
General Counsel and Secretary
EXHIBIT A
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Wire Transfer Instructions
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Chase Bank of Texas
ABA #: 113000609
Account #: 08805113824
Credit: Hicks, Muse & Co. Partners, L.P.
Reference: Payment of Monitoring Fees or Expenses by
Triton Energy Limited