SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1995
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
COMMISSION FILE NUMBER: 1-7864
TRITON ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-1151855
(State of other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or
organization)
6688 N. CENTRAL EXPRESSWAY, SUITE 1400, DALLAS, TEXAS 75206
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (214)691-5200
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES X NO
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
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Title of Each Class of Common Stock Number of Shares
Outstanding at April 30, 1995
Common Stock, par value $1.00 per share 35,582,146
</TABLE>
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
INDEX
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PART I. FINANCIAL INFORMATION PAGE NO.
Item 1. Financial Statements
Consolidated Condensed Statements of Operations -
Three months ended March 31, 1995 and 1994 2
Consolidated Condensed Balance Sheets -
March 31, 1995 and December 31, 1994 3
Consolidated Condensed Statements of Cash Flows -
Three months ended March 31, 1995 and 1994 4
Consolidated Condensed Statement of Shareholders' Equity -
Three months ended March 31, 1995 5
Notes to Consolidated Condensed Financial Statements 6
Review of Independent Accountants 9
Review Report of Independent Accountants 10
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 11
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 15
Item 6. Exhibits and Reports on Form 8-K 15
</TABLE>
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TRITON ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1995 AND 1994
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
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1995 1994
Revenues:
Sales and other operating revenues $21,912 $ 9,648
Other income 2,967 2,522
24,879 12,170
Costs and expenses:
Operating 10,221 7,452
General and administrative 6,483 7,383
Depreciation, depletion and amortization 4,775 4,046
Writedown of assets --- 6,571
Interest 5,597 2,554
Equity in (earnings) loss of affiliates, net (2,927) 375
Foreign exchange gain (492) (327)
23,657 28,054
Earnings (loss) before income taxes and minority interest 1,222 (15,884)
Income tax provision:
Current --- ---
Deferred 2,777 ---
(1,555) (15,884)
Minority interest in loss of subsidiaries --- 1,826
Net earnings (loss) (1,555) (14,058)
Dividends on preferred stock 449 ---
Earnings (loss) applicable to common stock $(2,004) $(14,058)
Weighted average number of common shares outstanding 34,984 34,870
Net earnings (loss) per common share $ (0.06) $ (0.40)
</TABLE>
See accompanying notes to consolidated condensed financial statements.
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(IN THOUSANDS)
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MARCH 31,
ASSETS 1995 DECEMBER 31,
(UNAUDITED) 1994
Current assets:
Cash and equivalents $ 9,113 $ 22,341
Short-term marketable securities 22,482 26,657
Receivables 26,997 20,241
Inventories, prepaid expenses and other 3,958 4,638
Total current assets 62,550 73,877
Long-term marketable securities 21,007 23,264
Property and equipment, at cost, less accumulated depreciation and
depletion of $499,996 and $493,050, respectively 428,121 399,658
Investments and other assets 130,748 122,402
$ 642,426 $ 619,201
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt $ 258 $ 257
Short-term borrowings 7,021 17,351
Accounts payable and accrued liabilities 23,962 26,608
Total current liabilities 31,241 44,216
Long-term debt, excluding current installments 349,852 315,258
Deferred income taxes 18,474 14,672
Deferred income and other 8,128 7,860
Convertible debentures due to employees --- ---
Shareholders' equity:
Preferred stock, no par value 17,976 17,976
Common stock, par value $1 35,578 35,577
Additional paid-in capital 504,956 505,256
Accumulated deficit (315,569) (314,014)
Foreign currency translation adjustment (6,958) (5,639)
Other (785) (1,384)
235,198 237,772
Less cost of common stock in treasury 467 577
Total shareholders' equity 234,731 237,195
Commitments and contingencies (Note 5)
$ 642,426 $ 619,201
</TABLE>
The Company uses the full cost method to account for its oil and gas producing
activities.
See accompanying notes to consolidated condensed financial statements.
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED MARCH 31, 1995 AND 1994
(IN THOUSANDS)
(UNAUDITED)
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1995 1994
Cash flows from operating activities:
Net earnings (loss) $ (1,555) $ (14,058)
Adjustments to reconcile net earnings (loss) to net cash
used by operating activities:
Depreciation, depletion and amortization 4,775 4,046
Amortization of debt discount 5,597 2,554
Equity in (earnings) losses of affiliates (2,927) 375
Writedown of assets --- 6,571
Foreign exchange gain (492) (327)
Deferred income taxes, minority interest and other 3,491 (1,011)
Changes in working capital pertaining to operating activities (6,815) (6,542)
Net cash provided (used) by operating activities 2,074 (8,392)
Cash flows from investing activities:
Capital expenditures and investments (36,035) (28,320)
Purchases of investments and marketable securities --- (85,191)
Proceeds from sale of investments and marketable securities 6,550 ---
Other (709) (353)
Net cash provided (used) by investing activities (30,194) (113,864)
Cash flows from financing activities:
Short-term borrowings, net (10,000) (820)
Proceeds from long-term debt 26,000 ---
Other (829) 529
Net cash provided (used) by financing activities 15,171 (291)
Effect of exchange rate changes on cash and equivalents (279) 908
Net decrease in cash and equivalents (13,228) (121,639)
Cash and equivalents at beginning of period 22,341 219,677
Cash and equivalents at end of period $ 9,113 $ 98,038
</TABLE>
See accompanying notes to consolidated condensed financial statements.
5
TRITON ENERGY CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF SHAREHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 31, 1995
(IN THOUSANDS)
(UNAUDITED)
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ADDITIONAL TOTAL
PREFERRED COMMON PAID-IN ACCUMULATED TREASURY SHAREHOLDERS'
STOCK STOCK CAPITAL DEFICIT OTHER STOCK EQUITY
Balances at
December 31, 1994 $ 17,976 $35,577 $ 505,256 $ (314,014) $(7,023) $ (577) $ 237,195
Net loss --- --- --- (1,555) --- --- (1,555)
Foreign currency translation
adjustment --- --- --- --- (1,319) --- (1,319)
Dividends on preferred stock --- --- (449) --- --- --- (449)
Other --- 1 149 --- 599 110 859
Balances at
March 31, 1995 $ 17,976 $35,578 $ 504,956 $ (315,569) $(7,743) $ (467) $ 234,731
</TABLE>
See accompanying notes to consolidated condensed financial statements.
TRITON ENERGY CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
1. GENERAL
In May 1994, the Company changed its fiscal year end from May 31 to December
31 effective January 1, 1995. The consolidated condensed financial statements
reflect the Company's financial position, results of operation and cash flow
for the first quarter ended March 31, 1995 and the restated quarter ended
March 31, 1994.
In the opinion of management, the accompanying unaudited consolidated
condensed financial statements of Triton Energy Corporation and subsidiaries
(collectively, the "Company") contain all adjustments of a normal recurring
nature necessary to present fairly the Company's financial position as of
March 31, 1995, and the results of its operations and its cash flows for the
three months ended March 31, 1995 and 1994 and shareholders' equity for the
three months ended March 31, 1995. The results of operations for the three
months ended March 31, 1995 and 1994, are not necessarily indicative of the
final results to be expected for the full year.
The consolidated condensed financial statements should be read in conjunction
with the Notes to Consolidated Financial Statements, which are included as
part of the Company's Transition Report on Form 10-K for the seven months
ended December 31, 1994.
Certain previously reported financial information has been reclassified to
conform to the current period's presentation.
2. DIVESTITURES
In March 1995, Crusader Ltd. ("Crusader"), a 49.9% affiliate of the Company,
completed the sale of Saracen Minerals for proceeds of $14.3 million. This
sale resulted in a net gain to the Company of approximately $3.8 million.
3. WRITEDOWN OF ASSETS
During the three months ended March 31, 1994, the carrying amount of the
Company's evaluated oil properties in France was written down by $6.4
million, principally as a result of lower oil prices used in the calculation
of the ceiling limitation prescribed by the Securities and Exchange Commission
(the "Commission" or "SEC").
4. LONG-TERM DEBT
On March 30, 1995, the Company signed a revolving credit facility with a bank
for up to $65 million. Borrowings bear interest at various rates either based
on prime or the London Interbank Offered Rate ("LIBOR") and mature on
September 30, 1996. The facility is secured by the Company's marketable
securities portfolio and Crusader common stock owned by the Company. As of
March 31, 1995, the Company had borrowed $26 million under the facility.
<PAGE>
TRITON ENERGY CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
5. COMMITMENTS AND CONTINGENCIES
COMMITMENTS
The Company is currently involved in the development of significant
discoveries in the Cusiana and Cupiagua fields (the "Fields") of Colombia and
is preparing to begin appraisal/ exploratory drilling in Block A-18 of the
Malaysia-Thailand Joint Development Area. The Company's capital budget for
the year ending December 31, 1995 is approximately $175 million, excluding
capitalized interest, of which approximately $100 million relates to the
Fields and $29 million relates to Block A-18. Capital requirements for full
field development of the Fields are expected to continue at substantial levels
into 1997. The Company expects to meet the balance of its direct capital
needs in 1995 and later years with increasing cash flow from Colombian
operations, cash on hand, marketable securities, proceeds from forward sales
of oil, other asset sales and possibly the issuance of equity or other
securities.
In December 1994, the Company, along with its partners, formed Oleoducto
Central S.A. ("OCENSA") to build, operate and finance the expanded pipeline
from the Fields to the port of Covenas. OCENSA is expected to be capitalized
with approximately 30% equity from the Company and its partners and 70% debt.
The Company's proportionate share of the debt would be borrowed by OCENSA, but
would be supported by various agreements with the Company (relating, in
particular, to the Company's throughput) by various transportation, advance
tariff and other agreements with the Company. The Company has a 9.6%
ownership interest in OCENSA.
During the normal course of business, the Company is subject to the terms of
various operating agreements and capital commitments associated with the
exploration and development of its oil and gas properties. Many of these
commitments are discretionary on the part of the Company. It is management's
belief that such commitments, including the capital requirements in Colombia
discussed above, will be met without any material adverse effect on the
Company's operations or consolidated financial condition.
GUARANTEES
At March 31, 1995, the Company has guaranteed loans of approximately $7.8
million for a Colombian pipeline company in which the Company has an ownership
interest and guaranteed performance of $12.5 million in future exploration
expenditures in various countries. These commitments are backed by letters of
credit and bank guarantees.
<PAGE>
TRITON ENERGY CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
REGULATORY MATTERS
The Company continues to cooperate with inquiries by the Commission and the
Department of Justice (the "Department") regarding possible violations of the
Foreign Corrupt Practices Act in connection with the Company's operations in
Indonesia. Based upon the information available to the Company to date, the
Company believes that it will be able to resolve any issues that either the
Commission or the Department ultimately might raise concerning these matters
in a manner that would not have a material adverse effect on the Company's
operations or consolidated financial condition.
LITIGATION
The Company is subject to litigation that is incidental to its business, none
of which is expected to have a material adverse effect on the Company's
operations or consolidated financial condition. (See Part II, Item 1. Legal
Proceedings.)
6. SUBSEQUENT EVENTS
In anticipation of entering into a forward oil sale in the near future, the
Company entered into five year commodity swap agreements in April and May
1995, to hedge price risk associated with a portion of the Company's oil
production in Colombia. The Company's Colombian production is priced with
reference to light sweet crude oil traded on the New York Mercantile Exchange
("WTI") subject to quality and other adjustments. The agreements, which were
entered into with a counterparty with a "AAA" credit rating, fixed a WTI price
benchmark on approximately 10.4 million barrels at $18.42 per barrel. The
quantities covered by the agreements are equivalent to approximately 16% of
the Company's currently projected Cusiana and Cupiagua production over the
life of the agreements.
Simultaneously, the Company purchased from the same institution call options
to retain the ability to benefit from future WTI price increases above $20.42
per barrel. The volumes and expiration dates on the call options coincide
with the volumes and delivery dates under the swap agreements. It is
anticipated that the swap agreements will be superseded by the forward oil
sale transaction. The call option agreements, however, would remain in
effect. As a result of these transactions, the Company's results of
operations, to the extent they are affected by sales of these volumes, would
benefit if the price of WTI exceeds $20.42 per barrel and would not be
adversely affected if the price of WTI is less.
On May 9, 1995, the Company received $5.3 million as settlement of a lawsuit.
This amount will be recorded in other income during the second quarter.
<PAGE>
REVIEW OF INDEPENDENT ACCOUNTANTS
Price Waterhouse LLP, independent accountants, have reviewed the consolidated
condensed balance sheet as of March 31, 1995, and the related consolidated
condensed statements of operations for the three months ended March 31, 1995
and 1994, the consolidated condensed statements of cash flows for the three
months ended March 31, 1995 and 1994, and the consolidated condensed statement
of shareholders' equity for the three months ended March 31, 1995, included in
this report. Such reviews were made in accordance with standards established
by the American Institute of Certified Public Accountants. See accompanying
Report of Independent Accountants.
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To The Board of Directors and Shareholders of
Triton Energy Corporation
We have reviewed the accompanying consolidated condensed balance sheet of
Triton Energy Corporation and subsidiaries as of March 31, 1995, the related
consolidated condensed statements of operations for the three months ended
March 31, 1995 and 1994, the consolidated condensed statements of cash flows
for the three months ended March 31, 1995 and 1994 and the consolidated
condensed statement of shareholders' equity for the three months ended March
31, 1995. This financial information is the responsibility of the Company's
management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures
to financial data and making inquiries of persons responsible for financial
and accounting matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing standards, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the accompanying interim financial information for it to be
in conformity with generally accepted accounting principles.
We previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet as of December 31, 1994, and the
related consolidated statements of operations, of shareholders' equity and of
cash flows for the seven months ended December 31, 1994 (not presented
herein), and in our report dated February 14, 1995, we expressed an
unqualified opinion on those consolidated financial statements. Our report
included a paragraph explaining that the Company changed its method of
accounting for investments in marketable securities at May 31, 1994 and income
taxes in 1993. In our opinion, the information set forth in the accompanying
consolidated condensed balance sheet as of December 31, 1994, is fairly stated
in all material respects in relation to the consolidated balance sheet from
which it has been derived.
PRICE WATERHOUSE LLP
Dallas, Texas
May 2, 1995
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Capital Requirements and Funding Alternatives
For the three months ended March 31, 1995, capital expenditures were
approximately $36 million, including $26.3 million relating to Colombia.
Continued funding for development of the oil fields in Colombia, including
drilling and production facilities, as well as commitments for seismic,
drilling and other exploration expenditures under various license, production
sharing and other agreements, will require significant additional capital.
The Company's capital budget for the year ending December 31, 1995 is
approximately $175 million, excluding capitalized interest, of which
approximately $100 million relates to the Cusiana and Cupiagua fields ("the
Fields") and $29 million relates to Block A-18 of the Malaysia-Thailand Joint
Development Area. Capital requirements for full field development of the
Fields are expected to continue at substantial levels into 1997.
In December 1994, the Company, along with its partners, formed Oleoducto
Central S.A. ("OCENSA") to build, operate and finance the expanded pipeline
from the Fields to the port of Coveas. OCENSA is expected to be capitalized
with approximately 30% equity from the Company and its partners and 70% debt.
The Company's proportionate share of the debt will be borrowed by OCENSA, but
will be supported by various agreements with the Company (relating, in
particular, to the Company's throughput). The Company has a 9.6% equity
interest in OCENSA.
The Company has received a commitment from the Export-Import Bank of the
United States ("Eximbank") for a guarantee of up to $35 million of borrowings
to purchase United States-sourced exports under credit facilities to be
negotiated. On March 30, 1995, the Company entered into a $65 million
long-term credit facility. Due to covenants in the indentures relating to the
Company's senior subordinated notes, the Company's ability to borrow
additional funds may be limited in the future.
The Company expects to meet the balance of its direct capital needs in
1995 and later years with increasing cash flow from Colombian operations,
cash on hand, marketable securities, proceeds from forward sales of oil, other
asset sales and possibly the issuance of equity or other securities. The
Company expects to complete a forward oil sale during the second quarter of
1995.
Other indenture covenants relating to the Company's senior subordinated
notes would require the Company to offer to purchase a portion of the notes if
the Company's shareholders' equity is less than $225 million at the end of two
consecutive quarters. As a result of the $1.6 million net loss reported by
the Company during the three month period ended March 31, 1995, shareholders'
equity is $235 million. Although the Company may experience further losses
for certain interim periods, the Company does not anticipate that any such
losses would cause it to violate any indenture covenants.
Liquidity and Capital Resources
Net working capital was $31.3 million at March 31, 1995, an improvement
over the $29.7 million at December 31, 1994. Cash, cash equivalents and
marketable securities totaled $52.6 million and $72.3 million at March 31,
1995 and December 31, 1994, respectively.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The Company incurred capital expenditures and other capital
investments of $36 million and $28.3 million for the quarter ended March
31, 1995 and 1994, respectively. Capital expenditures incurred during the
quarter ended March 31, 1995 were funded by cash and equivalents and
net proceeds from marketable securities ($6.6 million) and debt ($16 million).
Cash and equivalents were the principal source of funds for the quarter ended
March 31, 1994.
RESULTS OF OPERATIONS - THREE MONTHS ENDED MARCH 31, 1995 AND 1994
The Company reported a net loss of $1.6 million (before preferred
dividends) for the three months ended March 31, 1995 compared to a net loss of
$14.1 million in the 1994 period. The improved 1995 results reflected
increased production in Colombia, increased equity earnings from the Company's
49.9% affiliate, Crusader Limited ("Crusader") and the absence of writedowns
under the Securities and Exchange Commission ("SEC") ceiling limitation.
Revenues
Oil sales in Colombia increased by $12.9 million due to increased
production through the first two early production units in the Cusiana
central processing facilities and higher prices in Colombia ($15.29 per barrel
in 1995 compared to $10 per barrel in 1994). The 1995 results included
revenues of $3.7 million for reimbursement of pre-commerciality costs relating
to the Cusiana Field received from Ecopetrol. Ecopetrol is obligated to
reimburse the Company for approximately $21 million of remaining Cusiana
pre-commerciality costs, most of which will be recorded as revenue. The
reimbursements depend on the timing and amount of Cusiana production. The
Company expects that the timing and amount of such production will result in
the remaining reimbursements being paid during the remainder of 1995 and the
first half of 1996. The Company's net production in Colombia increased to .9
million barrels in 1995 from .1 million barrels in 1994.
Other income during 1995 included $1.9 million received from the
settlement of a lawsuit and interest income, while other income for 1994
primarily consisted of interest income.
Costs and Expenses
Operating expenses increased $2.8 million from 1994. The increase is
attributable to higher production in Colombia ($3.5 million) and higher
workover costs in France ($.8 million), partially offset by the 1994 accrual
of $1.3 million for environmental clean-up costs in the United States.
General and administrative ("G&A") expenses decreased from $7.4 million
in 1994 to $6.5 million in 1995 primarily due to increased new venture
activities which increased capitalized G&A. Total G&A costs increased
slightly from $10.6 million in 1994 to $11.4 million in 1995.
Higher production in Colombia increased depreciation, depletion and
amortization by $2.2 million while lower production and 1994 writedowns of oil
properties in France decreased depreciation, depletion and amortization by
$1.3 million in 1995 compared to 1994.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Writedown of assets in 1994 was related to oil properties in France
under application of the SEC full cost ceiling limitation.
Interest expense in 1995 was $5.6 million, an increase from $2.6
million, in 1994, due to higher debt outstanding and reduced capitalized
interest. As a result of the commencement of commercial level production in
Colombia, capitalized interest decreased to $3.8 million in 1995 from $5.3
million in 1994.
Equity in earnings of Crusader for 1995 included a net gain of $3.8
million on the sale of Saracen Minerals.
Income Taxes
The income tax provision for 1995 represented deferred taxes in Colombia,
Argentina, Ecuador, Guatemala and China, and a deferred tax benefit in the
United States related to future utilization of net operating loss
carryforwards.
Minority Interest in Losses of Subsidiaries
The Company ceased to record a minority interest charge following the
purchase of the minority interest in Triton Europe on March 31, 1994.
Petroleum Price Risk Management
Oil and natural gas sold by the Company is normally priced with reference
to a defined benchmark, such as light sweet crude oil traded on the New York
Mercantile Exchange ("WTI"). Actual prices received vary from the benchmark
depending on quality and location differentials. It is the Company's policy
to use financial market transactions with credit worthy counterparties in
order to reduce risk associated with the pricing of the oil and natural gas
which it sells. The policy is structured to underpin the Company's budgeted
revenues and results of operations.
In accordance with this policy, on March 29, 1995, the Company entered
into a commodity swap agreement with an "A" rated counterparty to hedge price
risk associated with the Company's oil production in France. The agreement
fixes a Brent crude oil price benchmark at $16.90 per barrel on approximately
275,000 barrels of oil to be produced during the period from April 1, 1995 to
September 30, 1995.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
In anticipation of entering into a forward oil sale in the near future,
the Company entered into five year commodity swap agreements in April and May
1995, to hedge price risk associated with a portion of the Company's oil
production in Colombia. The Company's Colombian production is priced with
reference to WTI. The agreements, which were entered into with a
counterparty with a "AAA" credit rating, fixed a WTI price benchmark of $18.42
per barrel on approximately 10.4 million barrels. The volumes covered by the
agreements are equivalent to approximately 16% of the Company's currently
projected Cusiana and Cupiagua production over the life of the agreements.
Simultaneously, the Company purchased from the same institution call
options to retain the ability to benefit from future WTI price increases above
$20.42 per barrel. The volumes and expiration dates on the call options
coincide with the volumes and delivery dates under the swap agreements. It is
anticipated that the swap agreements will be superseded by the forward oil
sale transaction. The call option agreements, however, would remain in
effect. As a result of these transactions, the Company's results of
operations, to the extent they are affected by sales of these volumes, would
benefit if the price of WTI exceeds $20.42 per barrel and would not be
adversely affected if the price of WTI is less.
Subsequent Event
On May 9, 1995, the Company received $5.3 million as settlement of a
lawsuit. This amount will be recorded in other income during the second
quarter.
New Accounting Pronouncement
In March 1995, the Financial Accounting Standards Board issued Statement
No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed Of" which will require companies to review
long-lived assets for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable. The
Company must adopt this standard in calendar 1996. The impact of adopting
this standard will not have a material adverse effect on the Company's
operations or consolidated financial condition.
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company's domestic oil and gas subsidiary, Triton Oil & Gas Corp. ("TOG"),
is among several defendants in two related lawsuits brought in the Superior
Court of the State of California, County of Los Angeles, by National Union
Fire Insurance Company ("National Union"), The Restaurant Enterprises Group
and Travelers Indemnity Company ("Travelers"). The lawsuits allege, among
other things, that the defendants' negligence contributed to the collapse of a
hotel and the flooding of a restaurant in a 1988 tidal wave at King Harbor in
Redondo Beach, California, which allegedly caused $22 million in damages and
related attorney fees. In the case of TOG, the alleged negligence was TOG's
drilling of nearby oil wells and alleged resulting ground subsidence which
purportedly lowered the height of the King Harbor breakwater. The lower
court's earlier dismissal of TOG as a defendant in the National Union and
Travelers actions was recently reversed by the District Courts of Appeals
(Divisions Two and Three) of the State of California. The City of Redondo
Beach has also filed a suit in the Superior Court against the Company and TOG
seeking indemnity for certain amounts paid by the City to settle the foregoing
lawsuits and other claims arising out of the flooding. The Company believes
that it and TOG have meritorious defenses and intends to defend the suits
vigorously.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: The following exhibits are filed as part of this Quarterly
Report on Form 10-Q:
1. Exhibits required to be filed by Item 601 of Regulation S-K. (Where the
amount of securities authorized to be issued under or the amount of any of
Triton Energy Corporation's and any of its subsidiaries' or its affiliate
Crusader's, long-term debt agreements does not exceed 10% of the Company's
assets, pursuant to paragraph (b) (4) of Item 601 of Regulation S-K, in lieu
of filing such an exhibit, the Company hereby agrees to furnish to the
Commission upon request a copy of any agreement with respect to such long-term
debt.)
4.1 Specimen Stock Certificate of Common Stock, $1.00 par value, of
the Company. (1)
4.4 Rights Agreement dated as of June 26, 1990, between Triton and
NationsBank of Texas, N.A. (f/k/a NCNB Texas, N.A.), as Rights
Agent. (3)
4.5 Statement of Cancellation of Redeemable Shares, dated October 1, 1991.
(7)
4.6 Form of Debt Securities. (12)
4.7 Proposed Form of Senior Indenture. (12)
4.8 Proposed Form of Senior Subordinated Indenture. (12)
4.9 Senior Subordinated Indenture by and between the Company and United
States Trust Company of New York, dated as of December 15, 1993.
(11)
<PAGE>
PART II. OTHER INFORMATION
4.10 First Supplemental Indenture by and between the Company and United
States Trust Company of New York, dated as of December 15, 1993.
(11)
4.11 Certificate of Designation Establishing and Designating a Series of
Shares of the Company, 5 % Convertible Preferred Stock, no par
value. (1)
4.12. Certificate of Incorporation, as amended. (1)
4.13 Bylaws. (1)
10.1 Triton Energy Corporation Amended and Restated Retirement Income
Plan. (11)
10.2 Triton Energy Corporation Amended and Restated Supplemental Executive
Retirement Income Plan. (11)
10.3 1981 Employee Non-Qualified Stock Option Plan of Triton Energy
Corporation. (2)
10.4 Amendment No. 1 to the 1981 Employee Non-Qualified Stock Option Plan
of Triton Energy Corporation. (6)
10.5 Amendment No. 2 to the 1981 Employee Non-Qualified Stock Option Plan
of Triton Energy Corporation. (2)
10.6 Amendment No. 3 to the 1981 Employee Non-Qualified Stock Option Plan
of Triton Energy Corporation. (11)
10.7 1985 Stock Option Plan of Triton Energy Corporation. (3)
10.8 Amendment No. 1 to the 1985 Stock Option Plan of Triton Energy
Corporation. (2)
10.9 Amendment No. 2 to the 1985 Stock Option Plan of Triton Energy
Corporation. (11)
10.10 Triton Energy Corporation Amended and Restated 1986 Convertible
Debenture Plan. (11)
10.11 1988 Stock Appreciation Rights Plan of Triton Energy Corporation.
(5)
10.12 Triton Energy Corporation 1989 Stock Option Plan. (8)
10.13 Amendment No. 1 to the Triton Energy Corporation 1989 Stock Option
Plan. (2)
10.14 Amendment No. 2 to the Triton Energy Corporation 1989 Stock Option
Plan. (11)
10.15 Triton Energy Amended and Restated 1992 Stock Option Plan . (11)
<PAGE>
PART II. OTHER INFORMATION
10.16 Form of Amended and Restated Employment Agreement by and among
Triton Energy Corporation and certain officers of Triton Energy
Corporation. (11)
10.17 Triton Energy Amended and Restated Restricted Stock Plan. (11)
10.18 Deed of Trust Note dated April 11, 1988, executed by Triton Aviation
Services, Inc. and API Terminal, Inc. and related documents,
including Guaranty of Triton Energy Corporation. (5)
10.19 Triton Energy Corporation Executive Life Insurance Plan. (4)
10.20 Triton Energy Corporation Long Term Disability Income Plan. (4)
10.21 Triton Energy Corporation Amended and Restated Retirement Plan for
Directors. (3)
10.22 Indenture dated as of November 13, 1992 between Triton and Chemical
Bank, with respect to the issuance of Senior Subordinated Discount
Notes due 1997. (9)
10.23 Supplemental Indenture dated as of July 1, 1993 between Triton
Energy Corporation and Chemical Bank. (5)
10.24 Supplemental Indenture dated as of August 16, 1993 between Triton
Energy Corporation and Chemical Bank. (5)
10.25 Underwriting Agreement dated June 18, 1993 among Triton Canada
Resources Ltd., Triton Energy Corporation and the underwriters named
therein. (10)
10.26 Purchase and Sale Agreement among Triton Oil and Gas Corp., Triton
Energy Corporation and Torch Energy Advisors Incorporated dated
effective as of January 1, 1993. (5)
10.27 Agreement for Purchase and Sale of Assets Among Triton Fuel Group,
Inc. and AVFUEL Corporation dated August 25, 1993. (5)
10.28 Contract for Exploration and Exploitation for Santiago de Atalayas I
with an effective date of July 1, 1982, between Triton Colombia,
Inc., and Empresa Colombiana De Petroleos. (5)
10.29 Contract for Exploration and Exploitation for Tauramena with an
effective date of July 4, 1988, between Triton Colombia, Inc., and
Empresa Colombiana De Petroleos. (5)
10.30 Summary of Assignment legalized by Public Instrument No. 1255 dated
September 15, 1987 (Assignment is in Spanish language). (5)
<PAGE>
PART II. OTHER INFORMATION
10.31 Summary of Assignment legalized by Public Instrument No. 1602 dated
June 11, 1990 (Assignment is in Spanish language). (5)
10.32 Summary of Assignment legalized by Public Instrument No. 2586 dated
September 9, 1992 (Assignment is in Spanish language). (5)
10.33 Guaranty between the Company and Comerica Bank Texas. (11)
10.34 Triton Energy Corporation 401(K) Savings Plan. (11)
10.36 Contract between Malaysia-Thailand and Joint Authority and Petronas
Carigali SDN.BHD. and Triton Oil Company of Thailand relating to
Exploration and Production of Petroleum for Malaysia-Thailand Joint
Development Area Block A-18. (14)
10.37 Credit agreement between Triton Energy Corporation and Banque
Paribas Houston Agency dated as of March 28, 1995, together with
related form of revolving credit note. (1)
10.38 Security Agreement between Triton Energy Corporation and Banque
Paribas Houston Agency. (1)
15.1 Letter of Price Waterhouse LLP, acknowledging awareness of the use of
their report dated May 10, 1995, relating to the review of interim
financial information. (1)
27.1 Financial Data Schedule.(1)
99.1 Rio Chitamena Association Contract.(15)
99.2 Rio Chitamena Purchase and Sale Agreement.(15)
99.3 Integral Plan - Cusiana Oil Structure.(15)
99.4 Letter Agreements With Co-Investor In Colombia.(15)
99.5 Colombia Pipeline Memorandum of Understanding.(15)
99.6 Oleducto Central Agreement.(16)
____________________
(1) Filed herewith.
(2) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1992 and incorporated herein by
reference.
<PAGE>
PART II. OTHER INFORMATION
(3) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1990 and incorporated herein by
reference.
(4) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1991 and incorporated herein by
reference.
(5) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1993 and incorporated by
reference herein.
(6) Previously filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1989 and incorporated by
reference herein.
(7) Previously filed as an exhibit to the Company's Registration Statement
on Form S-3 (No. 33-42430) and incorporated herein by reference.
(8) Previously filed as an exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1988 and incorporated
herein by reference.
(9) Previously filed as an exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1992 and incorporated
herein by reference.
(10) Previously filed as an exhibit to the Company's Current Report on
Form 8-K dated as of July 14, 1993 and incorporated herein by reference.
(11) Previously filed as an exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1993 and incorporated by
reference herein.
(12) Previously filed as an exhibit to the Company's Registration State-
ment on Form S-3 (No. 33-69230) and incorporated herein by reference.
(13) Previously filed as an exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 1994 and incorporated by
reference herein.
(14) Previously filed as an exhibit to the Company's current report on
Form 8-K dated April 21, 1994 and incorporated by reference herein.
(15) Previously filed as an exhibit to the Company's current report on
Form 8-K/A dated July 15, 1994 and incorporated by reference herein.
(16) Previously filed as an exhibit to the company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1994 and incorporated
herein by reference.
(b) Reports on Form 8-K
None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRITON ENERGY CORPORATION
/s/Peter Rugg
Peter Rugg
Senior Vice President and Chief Financial Officer
Date: May 12, 1995
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
INCORPORATED UNDER THE LAWS COMMON CAPITAL SHARES
OF THE STATE OF TEXAS
NUMBER SHARES
DX
THIS CERTIFICATE IS TRANSFERABLE IN PAR VALUE
DALLAS, NEW YORK, MONTREAL, TORONTO, ONE DOLLAR ($1)
WINNIPEG, REGINA, CALGARY AND VANCOUVER. CUSIP 896750 10 6
SEE REVERSE SIDE FOR CERTAIN DEFINITIONS
</TABLE>
TRITON ENERGY CORPORATION
THIS CERTIFIES THAT:
S P E C I M E N
IS THE OWNER OF:
FULLY PAID AND NON-ASSESSABLE COMMON CAPITAL SHARES OF
TRITON ENERGY CORPORATION TRANSFERABLE ON THE BOOKS OF THE COMPANY BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNLESS
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
IN WITNESS WHEREOF, THE CORPORATION HAS CAUSED THIS CERTIFICATE TO BE
SIGNED BY ITS DULY AUTHORIZED OFFICERS BY THE USE OF THEIR FACSIMILE
SIGNATURES AND ITS FACSIMILE SEAL TO BE HEREUNTO AFFIXED.
STATE OF INCORPORATION CHANGED TO DELAWARE
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
DATE
/s/ Thomas G. Finck COUNTERSIGNED AND REGISTERED
CHIEF EXECUTIVE OFFICER CHEMICAL MELLON SHAREHOLDER
SERVICES
/s/ Robert B. Holland, III
(Dallas, Texas)
SECRETARY Transfer Agent
And Registrar
Authorized Signature
</TABLE>
<PAGE>
TRITON
(ENERGY CORPORATION)
The Corporation will furnish to any stockholder, upon request and without
charge, a full statement of the powers, designations, preferences, and
relative, participating, optional or other special rights of the shares of
each class of stock of the Corporation authorized to be issued, or series
thereof, and the qualifications, limitations or restrictions of such
preferences and/or rights. Such request may be made to the Corporation or to
the Transfer Agent. Such statement is set forth in the Certificate of
Incorporation of the Corporation on file in the office of the Secretary of
State of Delaware and the Corporation.
__________________
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT Custodian.
TEN ENT - as tenants by the entireties (cus) (minor)
JT TEN - as joint tenants with right of Under uniform gifts to Minors
survivorship and not as tenants in common Act
(State)
Additional abbreviations may also be used though not in the above list.
</TABLE>
For value received _________ hereby sells, assigns and transfers under
Please insert Social Security or other
Identifying Number of Assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Shares of the capital stock represented by the within Certificate, and he
hereby irrevocably constitutes and appoints ________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution on the premises.
Dated_________________
<TABLE>
<CAPTION>
<S> <C>
NOTICE: The Signature(s) to
this assignment must correspond with
the name(s) as written upon the
face of the certificate in every
particular, without alteration or
enlargement or any change whatever
</TABLE>
Signature(s) must be guaranteed by a commercial bank or
trust company or a member firm of major stock exchange.
EXHIBIT 4.11
CERTIFICATE OF DESIGNATION
ESTABLISHING AND DESIGNATING A SERIES OF SHARES
OF
TRITON ENERGY CORPORATION
5% Convertible
Preferred Stock, no par value
To the Secretary of State
of the State of Delaware:
Pursuant to the provisions of Section 151 of the General Corporation Law
of the State of Delaware, and pursuant to Article IV of its Certificate of
Incorporation, the undersigned, Triton Energy Corporation, a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Company"), hereby submits and certifies the following statement
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
I. The name of the corporation is Triton Energy Corporation.
II. The following resolution establishing and designating a series of
shares and fixing and determining the relative rights and preferences thereof
was duly adopted by the Board of Directors of the Company on or about May 3,
1995.
RESOLVED, that, pursuant to the authority granted to the Board of
Directors of the Company by the Certificate of Incorporation, and subject to
the provisions of such Certificate of Incorporation, as amended, a series of
preferred stock consisting of 550,000 shares with no par value be, and the
same hereby is, created, established and designated for issuance with the
following rights, terms, preferences and voting powers:
1. Designation of Series, Number of Shares and Stated Value. The series
of preferred stock created herein shall be designated as the 5% Convertible
Preferred Stock, no par value (hereinafter the "5% Preferred Stock"), and the
number of shares initially constituting the 5% Preferred Stock shall be
550,000 shares. The stated value shall be $34.41 per share (the "Stated
Value").
2. Voting Rights. The holders of 5% Preferred Stock shall not, by
virtue of their ownership thereof, be entitled to vote upon any matter except
as provided in Section 7 herein or as required by law. Whenever the holders
of the 5% Preferred Stock shall be entitled to exercise voting rights, each
holder of record thereof shall have one vote for each share so held.
3. Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the holders of
shares of 5% Preferred Stock shall be entitled to receive out of assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to holders of Common Stock or any stock ranking junior to the
5% Preferred Stock as to liquidation, liquidating distributions (including,
without limitation, any outstanding shares of the preferred stock issuable
under the Company's Shareholder Rights Plan) an amount per share equal to the
Stated Value plus accumulated and unpaid dividends thereon including any
Penalty Dividend as defined in Section 4 hereof; provided, however, that such
rights shall accrue to the holders of the 5% Preferred Stock only in the event
that the Company's payments with respect to the liquidation preferences of the
holders of capital stock of the Company ranking senior as to liquidation
rights to the 5% Preferred Stock are fully met.
If upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the amounts payable with respect to the 5% Preferred Stock
and any other shares of stock of the Company ranking as to any such
distribution on a parity with the 5% Preferred Stock are not paid in full, the
holders of the 5% Preferred Stock and of such other shares shall share ratably
in any such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment of
the full amount of the liquidating distribution to which they are entitled,
the holders of shares of 5% Preferred Stock shall not be entitled to any
further participation in and distribution of assets by the Company.
Neither the consolidation of nor merging of the Company with or into any
other corporation or corporations, nor the sale or lease of all or
substantially all of the assets of the Company shall be deemed to be a
liquidation, dissolution or a winding up of the Company within the meaning of
any of the provisions of this Section 3.
4. Dividends. Holders of shares of 5% Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Company out
of assets of the Company legally available for payment, (i) a fixed cumulative
cash dividend of 5% per annum on the Stated Value, plus (ii) Penalty
Dividends, if any, as set forth below, and no more, payable in semi-annual
installments on September 30 and March 30 (unless such day is a non-business
day, in which event on the next business day), commencing September 30, 1994.
Dividends on each share of 5% Preferred Stock shall be cumulative from the
date of original issue of such share (the "Issue Date") and shall be payable
to holders of such share on the record date fixed for such payment by the
Board of Directors of the Company or a committee of such Board duly authorized
to fix such date. Dividends (including any Penalty Dividend) on account of
arrears for any past dividend periods may be declared and paid at any time
without reference to any regular dividend payment date to holders of record on
a record date fixed for such payment by the Board of Directors of the Company
or by a committee of such Board fully authorized to fix such date.
Dividends payable as of September 30, 1994 and on the date of any
redemption of the 5% Preferred Stock not occurring on a regular dividend
payment date shall be calculated on the basis of a 360 day year consisting of
twelve 30 day months. If the dividends on the 5% Preferred Stock shall not
have been declared and paid in full, or funds set aside for payment, by a date
15 days after each March 30 or September 30 dividend payment date, as the case
may be (the "Calculation Date"), dividends payable on the shares of 5%
Preferred Stock shall be increased by an amount equal to the Penalty Dividend
Rate applied against the amount of dividends so due and unpaid on the shares
of 5% Preferred Stock, to accrue on a daily basis for the period from the
Calculation Date to the date the dividends in respect of such dividend payment
date shall be paid (the "Penalty Dividend"). The "Penalty Dividend Rate" on
any date shall be the Prime Rate on such date plus 1% per annum. "Prime Rate"
on any day means the prime rate of Morgan Guaranty Trust Company of New York
in effect on such day. If for any reason such bank shall not have a published
prime rate on the date of determination thereof, then "Prime Rate" shall be
the rate set forth on such date in "Statistical Release H.15(519), Selected
Interest Rates," published by the Board of Governors of the Federal Reserve
System, under the heading "Bank Prime Loan." The Penalty Dividend Rate shall
be fixed on and as of the Calculation Date with respect to any Penalty
Dividend and shall continue at such rate for the following six months and
shall be adjusted each six months thereafter for the succeeding six-month
period.
No dividends shall be declared or paid or set apart for payment on any
stock ranking, as to dividends, junior to the 5% Preferred Stock for any
period unless full cumulative dividends have been or contemporaneously are
declared and paid (or declared and a sum sufficient for the payment thereof
set apart for such payment) on the 5% Preferred Stock for all dividend payment
periods terminating on or prior to the date of payment of dividends on such
junior stock. When dividends are not paid in full upon the 5% Preferred Stock
and upon any other stock ranking on a parity as to dividends with the 5%
Preferred Stock, all dividends declared upon shares of 5% Preferred Stock and
any other stock ranking on a parity as to dividends shall be declared pro rata
so that in all cases the amount of dividends declared per share on the 5%
Preferred Stock and such other stock shall bear to each other the series ratio
that accumulated and unpaid dividends per share on the shares of 5% Preferred
Stock and such other stock bear to each other. Except as provided in the
preceding sentence, unless full cumulative dividends on the 5% Preferred Stock
have been paid, no dividends shall be declared or paid or set aside for
payment or other distribution made upon any other stock of the Company ranking
junior to or on a parity with the 5% Preferred Stock as to dividends,
including the Common Stock of the Company and no repurchase or redemption of
such Common Stock shall be permitted. As used in this paragraph, the term
"dividend" includes any Penalty Dividend.
5. Mandatory Redemption. Shares of 5% Preferred Stock shall be subject
to mandatory redemption by the Company on March 30, 2004 (the "Mandatory
Redemption Date") at a redemption price (the "Redemption Price") equal to the
Stated Value plus any accumulated and unpaid dividends thereon including any
Penalty Dividend. At the option of the Company, the Redemption Price may be
paid in cash or by issuing for each share of 5% Preferred Stock being redeemed
such number of shares of Common Stock as are equal to the Redemption Price
divided by the Mandatory Redemption Date Market Price. "Mandatory Redemption
Date Market Price" shall mean the average of the Closing Prices of the Common
Stock, as defined in Section 8(G), for the five consecutive trading days
commencing with the twenty-fifth day immediately preceding the Mandatory
Redemption Date. Fractional entitlements shall be satisfied in cash as
provided in Section 8(H).
6. Optional Redemption. (A) Except as set forth in this paragraph, the
shares of 5% Preferred Stock are not redeemable prior to March 30, 1998. The
Company, at its option, may at any time on or after March 30, 1998 redeem for
cash all or part of the 5% Preferred Stock on any date set by the Board of
Directors of the Company at the Redemption Price to the date fixed for
redemption. Notwithstanding the foregoing, the Company may redeem for cash
all outstanding shares of the 5% Preferred Stock on or after such time as 75%
of the aggregate amount of initially issued shares of the 5% Preferred Stock
have been converted pursuant to Section 8.
(B) If less than all of the outstanding shares of 5% Preferred Stock are
to be redeemed, the Company will select those to be redeemed pro rata or by
lot or in such other manner as the Board of Directors of the Company may
determine.
(C) Notices of any redemption shall be mailed not less than thirty (30)
nor more than sixty (60) days prior to the date fixed for redemption to the
holders of record of shares of 5% Preferred Stock to be redeemed at their
respective addresses as the same appear upon the books of the Company;
provided, however, that no defect in the publication of such notice shall
affect the validity of the proceedings for the redemption of any shares of 5%
Preferred Stock. Payment of the Redemption Price of the shares redeemed shall
be made at the office of the Transfer Agent, as specified in Section 12
hereof, or at such other place or places of redemption as shall be determined
by the Board of Directors of the Company and shall be specified in the notice
of redemption and shall be made against the surrender for cancellation of the
certificates for the shares redeemed. Any shares of 5% Preferred Stock so
noticed for redemption may be converted into shares of Common Stock, as
hereinafter provided, at any time prior to the close of business on the fifth
business day prior to the date fixed for the redemption.
If notice of redemption shall have been mailed as hereinbefore provided
and if on or before the redemption date specified in such notice all funds
necessary for such redemption shall have been set aside by the Company so as
to be available for the benefit of the holders of the shares so called for
redemption, then from and after the date fixed for redemption the shares of 5%
Preferred Stock so called for redemption, notwithstanding that any certificate
therefor shall not have been surrendered or cancelled, shall no longer be
deemed outstanding and all rights with respect to such shares (including the
right to accumulate dividends) shall forthwith on the redemption date cease
and terminate, except only the right of the holders thereof to receive upon
surrender of certificates thereof the amount payable upon redemption thereof,
but without interest.
(D) All shares of 5% Preferred Stock so redeemed pursuant to this
Section 6 or Section 5 shall have the status of authorized but unissued
Preferred Stock, but such shares so redeemed shall not be reissued as shares
of the series of 5% Preferred Stock created hereby. Except as otherwise
provided herein, the Board of Directors of the Company shall have the full
power and authority to prescribe the manner in which, and terms and conditions
upon which, the 5% Preferred Stock may be redeemed.
7. Special Voting Rights. Without the vote or consent of the holders of
at least two-thirds of the number of shares of 5% Preferred Stock then
outstanding, voting or consenting, as a class, together with the holders of
any other outstanding shares of Preferred Stock similarly affected, the
Company shall not amend, alter or repeal the Certificate of Incorporation of
the Company so as adversely to affect the preferences and rights of the
holders of the 5% Preferred Stock, nor shall the Company issue for
consideration other than wholly for cash any shares of a class of stock
ranking prior to the 5% Preferred Stock with respect to dividends or to the
distribution of assets in liquidation.
8. Conversion Rights.
(A) Conversion Provisions. At any time subsequent to October 1,
1994, the holders of any one or more shares of the 5% Preferred Stock may, at
their option, convert such share or shares, on the terms and conditions set
forth in this Section 8, into fully paid and non-assessable shares of Common
Stock except that, with respect to any shares of the 5% Preferred Stock called
for redemption, the conversion right shall terminate at the close of business
on the fifth business day prior to the redemption date, unless default is made
in the payment of the Redemption Price. Each share of the 5% Preferred Stock
shall be convertible into one share of Common Stock (equivalent to a
conversion price equal to the Stated Value per share of 5% Preferred Stock);
provided, however, that the number of shares of Common Stock issuable on
conversion of each share of the 5% Preferred Stock (the "Conversion Rate")
shall be subject to adjustment as hereinafter provided in this Section 8:
(B) Adjustment for Unpaid Dividends. If at the time of any
conversion there shall be any unpaid Penalty Dividends, then the Conversion
Rate shall be adjusted so that upon conversion the holder of a share of 5%
Preferred Stock then converted shall receive for each share of 5% Preferred
Stock a number of shares of Common Stock equal to the Conversion Rate in
effect immediately before such adjustment multiplied by the quotient of (x)
the sum of (1) the conversion price in effect immediately prior to such
adjustment plus (2) the amount of such unpaid Penalty Dividends plus (3) the
cumulative amount of any unpaid dividends to the most recent dividend payment
date divided by (y) the conversion price in effect immediately prior to such
adjustment.
(C) Adjustment for Change in Capital Stock. If the
Company
(i) pays a dividend or makes a distribution on its Common
Stock, in shares of its Common Stock;
(ii) divides its outstanding shares of Common Stock into a
greater number of shares;
(iii) combines its outstanding shares of Common Stock into a
smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(v) issues by reclassification of its Common Stock any
shares of its capital stock;
then the conversion right and the conversion price in effect immediately
before such action shall be adjusted so that the holder of the 5% Preferred
Stock thereafter converted may receive the number of shares of capital stock
of the Company which he would have owned immediately following such action if
he had converted the 5% Preferred Stock immediately before the record date
(or, if no record date, the effective date) for such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a holder of the 5% Preferred Stock upon conversion
of it may receive shares of two or more classes of capital stock of the
Company, the Company shall determine the allocation of the adjusted conversion
price between the classes of capital stock. After such allocation, the
conversion privilege and conversion price of each class of capital stock shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock contained in this Section 8.
(D) Adjustment for Rights Issue. If the Company distributes any rights
or warrants to all holders of its Common Stock entitling them for a period
expiring within sixty (60) days after the record date mentioned below to
purchase shares of Common Stock at a price per share less than the current
market price per share on that record date, the conversion price shall be
adjusted in accordance with the formula:
(N x P)
C1 = C x O + M
O + N
where
C1 = the adjusted conversion price.
C = the current conversion price.
O = the number of shares of Common Stock outstanding on the
record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on the
record date.
The adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive the rights or
warrants.
(E) Adjustment for Other Distributions. If the Company distributes to
all holders of its Common Stock any of its assets or debt securities or any
rights or warrants to purchase securities of the Company, the conversion price
shall be adjusted in accordance with the formula:
C1 = C x M - F
M
where
C1 = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of Common Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights of warrants applicable to one share
of Common Stock. The Board of Directors of the Company
shall determine the fair market value.
The adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive the distribution.
This paragraph (E) does not apply to cash dividends or cash distributions
paid out of consolidated current or retained earnings as shown on the books of
the Company. Also, this paragraph (E) does not apply to rights or warrants
referred to in paragraph (D) above.
(F) Adjustment for Reorganization. In case of any consolidation or
merger of the Company into another corporation, or in the case of any merger
of another corporation into the Company (other than a merger with a
corporation in which merger the Company is the continuing corporation and
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock), or in case of any sale or
conveyance to another corporation of all or substantially all of the assets of
the Company, the holder of each share of the 5% Preferred Stock then
outstanding shall have the right thereafter, subject to the terms and
conditions of this Section 8, to convert such share only into the kind and
amount of shares of stock and other securities and property receivable upon
such consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock into which such share of 5% Preferred Stock might have
been converted immediately prior to such consolidation, merger, sale or
conveyance; and effective provision shall be made in the Certificate of
Incorporation of the resulting or surviving corporation or otherwise so that
the provisions set forth in this Section 8 shall thereafter be applicable, as
nearly as practicable, to any such other shares of stock and other securities
and property deliverable upon conversion of the 5% Preferred Stock remaining
outstanding or other convertible preferred stock received by the holders in
place thereof; and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon the exercise of the conversion
privilege, such shares, securities or property as the holders of the 5%
Preferred Stock remaining outstanding, or other convertible preferred stock
received by the holders in place thereof, may be entitled to and to make
provisions for the protection of the conversion right as herein provided. In
case securities or property other than shares of Common Stock shall be
issuable or deliverable upon conversion as aforesaid, then all reference in
this paragraph (F) shall be deemed to apply, so far as appropriate and as
nearly as practicable, to such other securities or property.
(G) Current Market Price. For the purpose of any computation under this
Section 8, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily closing prices for the five (5)
consecutive business days commencing ten (10) business days before the date in
question. The "Closing Price" for each day shall be the last reported sale of
Common Stock on the principal national securities exchange on which the Common
Stock may be listed or if such stock is not then so listed, the closing price
of the Common Stock as shown by the National Association of Securities
Dealers, Inc. National Market System or, if no such closing price is
available, at the average of the representative last bid and asked prices of
such Common Stock in the over-the-counter market, as shown by the National
Association of Securities Dealers, Inc. Automated Quotation System Level I (or
comparable system) or in the absence of any of the foregoing, the fair market
value as determined by the Board of Directors (whose determination shall be
conclusive).
(H) Fractional Shares. No fractional shares of Common Stock shall be
issued on any conversion or redemption, but in lieu thereof, the Company shall
pay therefor in cash an amount equal to the current market value of such
fractional interest computed on the basis of the average closing price as
determined in accordance with the provision of paragraph (G) above, on the
five (5) business days prior to the date upon which conversion is deemed to
have been effected. Any determination that the Company or the Board of
Directors makes regarding fractional shares is conclusive.
(I) When No Adjustment Required. Notwithstanding the provisions of
paragraphs (C), (D), (E) and (F) above, no adjustment of the Conversion Rate
shall be required upon the occurrence of any of the events described in
paragraphs (C), (D), (E) and (F), unless such adjustment would require an
increase or decrease of at least 1% in the Conversion Rate, but in such case
any adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together with the next
subsequent adjustment. All calculations under this Section 8 shall be made
and rounded to the nearest one-hundredth of a share.
No payment or adjustment on account of dividends accumulated or in
arrears upon shares of the 5% Preferred Stock, any other series of Preferred
Stock, or Common Stock, shall be made in connection with any conversion,
except as provided in paragraph 8(B) above or at the discretion of the Board
of Directors. Preferred Stock surrendered for conversion between the record
date for payment of dividends and the dividend payment date (except for 5%
Preferred Stock called for redemption during such period) must be accompanied
by a payment of an amount equal to the dividend thereon which the holder is to
receive.
No adjustment need be made for sales of Common Stock pursuant to a plan
for reinvestment of dividends or interest and no adjustment need be made for a
change in the par value of the Common Stock.
The Board of Directors may make such adjustments in the Conversion Rate,
in addition to those required by this Section 8, as shall be determined by the
Board, as evidenced by a Board resolution, to be advisable in order to avoid
taxation, so far as practicable, of any dividend of stock or stock rights or
any event treated as such for Federal income tax purposes to the recipients.
The Board shall have the power to resolve any ambiguity or correct any error
in this Section 8 and its action in so doing, as evidenced by a Board
resolution, shall be final and conclusive, provided that such action shall not
adversely affect the holders of the 5% Preferred Stock in any material
respect.
The certificate of any independent firm of public accountants of
recognized standing selected by the Board of Directors shall be satisfactory
evidence of the correctness of any computation made in this Section 8.
(J) Notice of Adjustment. Whenever there is an adjustment requiring a
change in the Conversion Rate, the Company shall file with the transfer agent,
or transfer agents, for the Common Stock, a statement signed by the President
or a Vice President and by the Treasurer or the Secretary of the Company,
describing specifically the event giving rise to such adjustment and stating
the adjustment which shall be made to the Conversion Rate. The statement so
filed shall be open to inspection by any holder of record of shares of the 5%
Preferred Stock. The Company shall at the time of filing any such statement
mail notice to the same effect to holders of shares of the 5% Preferred Stock
at their addresses appearing on the books of the Company or supplied by them
to the Company for the purpose of notice. In addition, the Company shall
include a notice of the Conversion Rate with each dividend payment on the 5%
Preferred Stock or otherwise give notice thereof promptly after the due date
for each such dividend, whenever there has been a change in the Conversion
Rate since the last previous dividend due date.
(K) Conversion Procedure. Upon surrender to the Company at the office
of the transfer agent, or transfer agents, for the Common Stock, or at such
other place or places, if any, as the Board of Directors of the Company may
determine, of certificates, duly endorsed to the Company or in blank, for
shares of 5% Preferred Stock to be converted, together with appropriate
evidence of the payment of any transfer or similar tax, if required, and
instructions in writing to the Company to convert such shares and specifying
the name and address of the person, corporation, firm or other entity to whom
such shares are to be issued, the Company will issue (i) the number of full
shares of Common Stock issuable on conversion thereof as of the time of such
surrender and as promptly as practicable thereafter will deliver certificates
for such shares of Common Stock, and (ii) cash for any remaining fraction of a
share, as provided in paragraph (H) above. The Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of Common Stock upon conversion; provided, however, that the holder shall pay
any such tax which is due because such shares are to be issued in a name other
than that of such holder.
The Company shall at all times after the Issue Date reserve for issuance
upon conversion of the 5% Preferred Stock a sufficient number of full shares
of Common Stock for the conversion of each outstanding share of 5% Preferred
Stock at the current Conversion Rate. The Common Stock issuable upon such
conversion shall have one vote per share.
(L) Voluntary Increase in Conversion Rate. The Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least twenty (20) days and if the increase is irrevocable
during the period. Whenever the Conversion Rate is increased, the Company
shall give notice of the increase at least fifteen (15) days prior to the date
the increased Conversion Rate takes effect, in the manner set forth in
paragraph (E) of this Section 8, which notice shall state the increased
Conversion Rate and the period it will be in effect. An increase in the
Conversion Rate pursuant to this paragraph (L) shall not change or adjust the
Conversion Rate otherwise in effect for purposes of this Section 8.
(a) Notice of Certain Transactions. If
(1) the Company takes any action that would require an adjustment
in the Conversion Rate pursuant to paragraphs (C), (D), (E) or (F) of this
Section 8; or
(2) there is a liquidation or dissolution of the Company;
the Company shall provide notice in the manner set forth in paragraph (J) of
this Section 8 of such action, stating therein the proposed record date for a
distribution or the effective date of a reclassification, consolidation;
merger, sale, conveyance, liquidation or dissolution, at least fifteen (15)
days in advance of such date. Failure to mail the notice or any defect
therein shall not affect the validity of the transaction.
9. Subdivision of Shares. The Board of Directors may at any time
subdivide the shares of 5% Preferred Stock as of an effective date fixed by
the Board of Directors. Notice of the proposed subdivision and the effective
date shall be mailed to each holder of record of 5% Preferred Stock not less
than fifteen (15) days before the effective date. The Stated Value,
Conversion Rate and liquidation rights of the 5% Preferred Stock in effect
immediately prior to the close of business on the effective date of such
subdivision shall be proportionately reduced as of the close of business on
the effective date of such division.
10. "Common Stock" Defined. Whenever reference is made in this
resolution to "Common Stock," "Common Stock" shall mean all shares now or
hereafter authorized of the class of the capital stock of the Company
authorized at the Issue Date and designated as Common Stock, $1.00 par value,
and stock of any other class into which such shares may hereafter be changed.
11. No Preemptive Rights. The holders of the 5% Preferred Stock shall
not have any preemptive rights.
12. Agent. Chemical Bank is hereby appointed Transfer Agent, Registrar,
Conversion Agent and Dividend Disbursing Agent for the 5% Preferred Stock.
<PAGE>
IN WITNESS WHEREOF, TRITON ENERGY CORPORATION has caused this certificate
to be signed by the officers indicated below this 3rd day of May, 1995.
TRITON ENERGY CORPORATION
By: _____________________________
Robert B. Holland, III
Sr. Vice President, General Counsel
and Secretary
ATTEST:
By: __________________________________
Tamera D. Gibson, Assistant Secretary
EXHIBIT 4.12
CERTIFICATE OF INCORPORATION
OF
TRITON ENERGY CORPORATION
ARTICLE I
The name of the corporation is TRITON ENERGY CORPORATION.
ARTICLE II
The period of its duration is perpetual.
ARTICLE III
The purposes of the corporation are to engage in any lawful act or
activity for which corporations may be organized under the General Corporate
Law of the State of Delaware.
ARTICLE IV
The aggregate number of shares which this corporation shall have
authority to issue is Two Hundred Five Million (205,000,000) shares consisting
of Two Hundred Million (200,000,000) shares of Common Stock of the par value
of $1.00 per share and Five Million (5,000,000) shares of Preferred Stock
without par value.
The Preferred Stock may be divided into and issued into series. If the
shares of any such class are to be issued in series, then each series shall be
so designated as to distinguish the shares thereof from the shares of any such
class and variations and the relative rights and preferences as between
different series can be fixed and determined by the Board of Directors. The
authority of the Board of Directors with respect to each series shall include,
without limitation thereto, the determination of any or all of the following
and the shares of each series may vary from the shares of any other series in
the following respects:
The Board of Directors of this corporation is hereby authorized to issue
the Preferred Stock at any time and from time to time, in one (1) or more
series and for such consideration as may be fixed from time to time by the
Board of Directors, but not less than the par value thereof. The number of
shares to comprise each such series, which number may be increased (but not
above the total number of authorized shares of the class except where
otherwise provided by the Board of Directors in creating such series) or
decreased (but not below the number of shares thereof then outstanding), shall
be determined from time to time by the Board of Directors. The Board of
Directors is hereby expressly authorized, before issuance of any shares of a
particular series, to determine any and all rights, preferences and
limitations pertaining to such series including but not limited to:
(1) Voting rights, if any, including without limitation, the
authority to confer multiple votes per share, voting rights as to specified
matters or issues such as mergers, consolidations or sales of assets, or
voting rights to be exercised either together with holders of common stock as
a single class, or independently as a separate class;
(2) Rights, if any, permitting the conversion or exchange of any such
shares, at the option of the holder into any other class or series of shares
of this corporation and the price or prices or the rates of exchange and any
adjustment thereto at which such shares will be convertible or exchangeable;
(3) The rate of dividends, if any, payable on shares of such series,
the conditions and the dates upon which such dividends shall be payable and
whether such dividends shall be cumulative or non-cumulative;
(4) The amount payable on shares of such series in the event of any
liquidation, dissolution or winding up of the affairs of this corporation;
(5) Redemption, repurchase, retirement and sinking fund rights,
preferences and limitations, if any, the amount payable on shares of such
series in the event of such redemption, repurchase or retirement, the terms
and conditions of any sinking fund, the manner of creating such fund or funds
and whether any of the foregoing shall be cumulative or non-cumulative; and
(6) Any other preference and relative, participating, optional or
other special rights and qualifications, limitations or restrictions of shares
of such series not fixed and determined herein, to the extent permitted to do
so by law.
All shares of Preferred Stock shall be of equal rank and shall be
identical, except with respect to the particulars that may be fixed by the
Board of Directors as above provided and as to the date from which dividends
thereon, if any, shall be cumulative if made cumulative by the Board of
Directors.
No stockholder of the corporation will, solely by reason of holding
shares of any class, have any preemptive or preferential right to purchase or
subscribe for any shares of the corporation, now or hereafter to be
authorized, or any notes, debentures, bonds or other securities convertible
into or carrying warrants, rights or options to purchase shares of any class,
now or hereafter to be authorized, whether or not the issuance of any such
shares or such notes, debentures, bonds or other securities would adversely
affect the dividend, voting or any other rights of such stockholder. The
Board of Directors may authorize the issuance of, and the corporation may
issue, shares of any class of the corporation, or any notes, debentures, bonds
or other securities convertible into or carrying warrants, rights or options
to purchase any such shares, without offering any shares of any class to the
existing holders of any class of stock of the corporation. Any such
securities or additional shares of stock may be issued or disposed of by the
Board of Directors to such persons and on such terms as in its discretion may
be deemed advisable.
At each election for directors every stockholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected
and for whose election he has a right to vote. Cumulative voting, for the
election of directors or otherwise, is expressly prohibited. Election of
directors need not be by ballot. On all matters coming before the
stockholders, other than the election of directors, each share of issued and
outstanding Common Stock shall be entitled to one (1) vote.
ARTICLE V
The post office address of the corporation's initial registered office is
c/o Corporation Trust Company, 1209 Orange Street, Wilmington, County of New
Castle, Delaware 19801, and the name of its initial registered agent at such
address is The Corporation Trust Company.
ARTICLE VI
The powers of the incorporator will terminate upon the filing of this
Certificate. The name and address of the incorporator are:
Robert B. Holland, III Triton Energy Corporation
6688 N. Central Expressway
Suite 1400
Dallas, TX 75206
ARTICLE VII
The number of directors constituting the initial Board of Directors is
three (3). The names and addresses of the persons who will initially serve as
directors are:
Thomas G. Finck c/o Triton Energy Corporation
6688 N. Central Expressway
Suite 1400
Dallas, TX 75206
Robert B. Holland, III c/o Triton Energy Corporation
6688 N. Central Expressway
Suite 1400
Dallas, TX 75206
Peter Rugg c/o Triton Energy Corporation
6688 N. Central Expressway
Suite 1400
Dallas, TX 75206
After the filing of this Certificate of Incorporation, subject to the
rights of any series of Preferred Stock designated pursuant to Article IV, the
number of directors which shall constitute the whole Board of Directors shall
be not less than three (3) nor more than fifteen (15), and shall be determined
by resolution passed by a majority of the whole Board of Directors, except
that no decrease shall shorten the term of any incumbent director. The
directors elected by the holders of Common Stock shall be divided into three
classes, namely Classes I, II and III. Each class shall be as nearly equal in
number as possible. The term of office of the Class I directors shall expire
at the 1996 annual meeting of stockholders; the term of office of the Class II
directors shall expire at the 1997 annual meeting of stockholders; the term of
office of the Class III directors shall expire at the 1998 annual meeting of
stockholders; and at each annual meeting of stockholders, commencing with the
1996 annual meeting of stockholders, the successors to the class of directors
whose term of office shall then expire shall be elected to hold office for a
term that shall expire at the third succeeding annual meeting of stockholders.
Newly created directorships resulting from an increase in the number of
directors, and vacancies occurring in the Board of Directors for any other
reason, may be filled by the affirmative vote of a majority of the directors
then in office, even though such number may constitute less than a quorum. A
director elected to fill a newly created directorship, and a director elected
to fill a vacancy, shall be elected to hold office until the next annual
meeting of stockholders at which the term of the class of directors for which
such director shall have been chosen shall expire and until his successor has
been elected and qualified. Directors elected by the stockholders or the
Board of Directors pursuant to this Article VII may not be removed without
cause. Notwithstanding any other provisions of this Certificate of
Incorporation, and in addition to any other vote that may be required by law
or this Certificate of Incorporation, this Article may not be amended,
altered, repealed or otherwise changed unless approved by the affirmative vote
of the holders of at least two-thirds of the outstanding shares of stock of
the corporation entitled to vote thereon.
ARTICLE VIII
To the fullest extent permitted by the laws of the State of Delaware as
the same exist or may hereafter be amended, a director of the corporation will
not be liable to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. Any repeal or modification of this
Article will not increase the personal liability of any director of the
corporation for any act or occurrence taking place before such repeal or
modification, or adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification. The
provisions of this Article VIII shall not be deemed to limit or preclude
indemnification of a director by the corporation for any liability of a
director that has not been eliminated by the provisions of this Article VIII.
ARTICLE IX
The corporation will, to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter
be amended, indemnify and advance expenses to any and all persons it has power
to indemnify and advance expenses to under such law from and against any and
all of the expenses, liabilities or other matters referred to in or covered by
such law. Such indemnification and advancement of expenses may be provided
pursuant to any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his director or officer capacity
and as to action in another capacity while holding such office, will continue
as to a person who has ceased to be a director, officer, employee or agent,
and will inure to the benefit of the heirs, executors and administrators of
such a person.
ARTICLE X
The corporation expressly elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE XI
The Board of Directors is expressly authorized to alter, amend or repeal
the Bylaws of the corporation or to adopt new Bylaws.
Executed as of the 27 day of April, 1995.
/s/
Robert B. Holland, III
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
TRITON ENERGY CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That by Unanimous Written Consent of the Board of Directors of
Triton Energy Corporation (the "Corporation"), resolutions were duly adopted
setting forth proposed amendment of the Certificate of Incorporation of the
Corporation, declaring said amendment to be considered for approval by the
Corporation's sole stockholder. The resolution setting forth the proposed
amendment is as follows:
"RESOLVED, that the Certificate of Incorporation of this Corporation be
amended to add the following Article XII:
The stockholders of the corporation may only act by written consent in lieu of
a meeting if such written consent is signed by the holder or holders of all
the shares entitled to vote with respect to the action that is the subject of
the consent."
SECOND: That the sole stockholder of the Corporation approved the
amendment to the Certificate of Incorporation by unanimous written consent
dated May 10, 1995.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of said amendment.
IN WITNESS WHEREOF, Triton Energy Corporation has caused this Certificate
of Amendment to be executed as of the 10th day of May, 1995.
By: /s/
Robert B. Holland, III
Vice President
ATTEST:
/s/
Tamera D. Gibson, Assistant Secretary
EXHIBIT 4.13
BYLAWS OF
TRITON ENERGY CORPORATION
A Delaware Corporation
<PAGE>
BYLAWS OF
TRITON ENERGY CORPORATION
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 1 OFFICES
Section 1. Registered Office and Registered Agent 1
Section 2. Other Offices 1
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. Meetings 1
Section 2. Annual Meetings 1
Section 3. Special Meetings 2
Section 4. Voting List 2
Section 5. Notice of Stockholders Meetings 2
Section 6. Fixing Record Date 3
Section 7. Quorum 3
Section 8. Voting Shares 4
ARTICLE III DIRECTORS
Section 1. Board of Directors 4
Section 2. Number of Directors 5
Section 3. Nomination of Directors 5
Section 4. Vacancies and Newly Created Directorships 6
Section 5. Removal of Directors 7
Section 6. Meetings 7
Section 7. First Meeting 7
Section 8. Regular Meetings 8
Section 9. Special Meetings 8
Section 10. Quorum; Majority Vote 8
Section 11. Consent of Directors 9
Section 12. Telephonic Meeting 9
Section 13. Committees of Directors 9
Section 14. Compensation of Directors 10
Section 15. Resignation 10
Section 16. Liability of Directors 11
Section 17. Indemnification 11
ARTICLE IV NOTICES
Section 1. Method of Notice 12
Section 2. Waiver of Notice 12
ARTICLE V OFFICERS
Section 1. Officers 13
Section 2. Compensation 13
Section 3. Term; Removal; Resignation; Vacancies 13
Section 4. The Chairman of the Board 14
Section 5. Chief Executive Officer 14
Section 6. The President 15
Section 7. Vice Presidents 15
Section 8. Secretary and Assistant Secretaries 16
Section 9. Treasurer and Assistant Treasurers 17
ARTICLE VI CERTIFICATES AND STOCKHOLDERS
Section 1. Certificates of Shares 18
Section 2. Lost Certificates 20
Section 3. Transfers of Shares 20
Section 4. Registered Stockholders 21
ARTICLE VII GENERAL PROVISIONS
Section 1. Dividends 21
Section 2. Reserves 21
Section 3. Checks 21
Section 4. Fiscal Year 22
Section 5. Seal 22
Section 6. Contracts 22
Section 7. Deposits 22
Section 8. Books and Records 22
ARTICLE VIII BYLAWS
Section 1. Amendments 23
Section 2. Construction 23
Section 3. Table of Contents; Headings 23
</TABLE>
<PAGE>
BYLAWS
OF TRITON ENERGY CORPORATION
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE AND REGISTERED AGENT. The registered
office and registered agent of Triton Energy Corporation (the "Corporation")
shall be as from time to time set forth in the Corporation's Certificate of
Incorporation (the "Certificate of Incorporation") or in any certificate filed
with the Secretary of State of the State of Delaware, and the appropriate
county recorder or recorders, as the case may be, to amend such information.
Section 2. OTHER OFFICES. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
Corporation may require or as may be desirable.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. MEETINGS. All meetings of the stockholders for the
election of directors shall be held at such place, within or without the State
of Delaware, as may be fixed from time to time by the Board of Directors; at
least ten (10) days' notice shall be given to the stockholders of the place so
fixed. Meetings of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETINGS. Annual meetings of stockholders shall be
held each year at such date and time as set by the Board of Directors and
stated in the notice of meeting, at which they shall elect by a plurality vote
a class of directors of the Board of Directors, and transact such other
business as may properly be brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be
called by the President or Secretary at the request in writing of a majority
of the Board of Directors. Such request shall state the purpose or purposes
of the proposed meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 4. VOTING LIST. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days
before every election of directors, a complete list of the stockholders
entitled to vote at said election, arranged in alphabetical order with the
residence of and the number of voting shares held by each. Such list shall be
open at the place where said election is to be held for ten (10) days, to the
examination of any stockholder, and shall be produced and kept at the time and
place of election during the whole time thereof, and subject to the inspection
of any stockholder who may be present. The original stock ledger or transfer
book, or a duplicate thereof, shall be prima facie evidence as to who are the
stockholders entitled to examine such list or share ledger or transfer book or
to vote at any meeting of the stockholders.
Section 5. NOTICE OF STOCKHOLDERS MEETINGS. Written or printed
notice stating the place, day and hour of each meeting of stockholders, and in
case of a special meeting, the purpose or purposes for which it is called,
shall be delivered not less than ten (10) nor more than sixty (60) days before
the date of the meeting, either personally or by mail, by or at the direction
of the President, the Secretary, or the officer or person calling the meeting,
to each stockholder of record entitled to vote at such meeting. If mailed,
notice shall be deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the stock
transfer records of the Corporation.
Section 6. FIXING RECORD DATE. The Board of Directors may fix in
advance a record date for the purpose of determining stockholders entitled to
notice of or to vote at a meeting of stockholders, which record date will not
precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date will not be less than ten nor
more than sixty days prior to such meeting. In the absence of any action by
the Board of Directors, the close of business on the date next preceding the
day on which the notice is given will be the record date, or, if notice is
waived, the close of business on the day next preceding the day on which the
meeting is held will be the record date.
Section 7. QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation in respect of the vote required for a specified
action, at any meeting of stockholders the holders of a majority of the
outstanding shares entitled to vote thereat, either present or represented by
proxy, shall constitute a quorum necessary for the transaction of any
business, but the stockholders present, although less than a quorum, may
adjourn the meeting to another time or place and notice need not be given of
the adjourned meeting, unless the adjournment is for more than 30 days. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, despite the withdrawal of enough stockholders to
leave less than a quorum.
Section 8. VOTING SHARES. Whenever directors are to be elected at a
meeting, they shall be elected by a plurality of the votes cast in person or
by proxy at the meeting by the holders of shares entitled to vote. Whenever
any corporate action, other than the election of directors, is to be taken by
vote of stockholders at a meeting, it shall, except as otherwise required by
law or by the Certificate of Incorporation or these Bylaws, be authorized by a
majority of the votes cast at the meeting in person or by proxy by the holders
of shares entitled to vote thereon.
Each outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders, except
as otherwise provided by law or by the Certificate of Incorporation or by
these Bylaws. At any meeting of stockholders, a stockholder having the right
to vote may vote either in person or by proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. No proxy shall be
valid after 3 years from the date of its execution, unless otherwise provided
in the proxy. Each proxy shall be revocable unless conspicuously stated
therein to be irrevocable and unless the proxy is coupled with an interest.
Any vote may be taken by voice or show of hands unless a stockholder
entitled to vote, either in person or by proxy, objects, in which case written
ballots shall be used.
ARTICLE III
DIRECTORS
Section 1. BOARD OF DIRECTORS. The business and affairs of the
Corporation shall be managed by its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
Section 2. NUMBER OF DIRECTORS. In accordance with the Certificate
of Incorporation, the number of directors which shall constitute the whole
Board shall be not less than three (3) nor more than fifteen (15), and shall
be determined by resolution passed by a majority of the whole Board of
Directors, except that no decrease shall shorten the term of any incumbent
director. The directors shall be elected at the annual meeting of the
stockholders, except as provided in the Certificate of Incorporation and
Section 4 of this Article, and each director elected shall be classified as
Class I, Class II or Class III and hold office according to the tenure
assigned to the respective Class or until his successor is elected and
qualified. Directors need not be stockholders.
Section 3. NOMINATION OF DIRECTORS. Subject to the rights of holders
of any class or series of stock having a preference over the Common Stock as
to dividends or upon liquidation, nominations for the election of directors
may be made by the Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote in the election of directors
generally. However, any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election as directors
at a meeting only if written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Corporation not
later than (i) with respect to an election to be held at an annual meeting of
stockholders, ninety (90) days in advance of such meeting, and (ii) with
respect to an election to be held at a special meeting of stockholders for the
election of directors, the close of business on the seventh day following the
date on which notice of such meeting is first given to stockholders. Each
such notice shall set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of shares of
the Corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would have been required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the nominee been nominated, or intended to be
nominated, by the Board of Directors; and (e) the consent of each nominee to
serve as a director of the Corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Section 4. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies
occurring on the Board of Directors may be filled by a majority of the
remaining directors, though less than a quorum. A director elected to fill
the vacancy shall be elected for the unexpired term of his predecessor in
office.
Notwithstanding the foregoing, whenever the holders of any class or
series of shares of stock of the Corporation are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, any vacancies
in such directorships and any newly created directorships of such class or
series to be filled by reason of an increase in the number of such directors
may be filled by the affirmative vote of a majority of the directors elected
by such class or series then in office or by a sole remaining director so
elected, or by the vote of the holders of the outstanding shares of such class
or series, and such directorships shall not in any case be filled by the vote
of the remaining directors or the holders of the outstanding shares as a whole
unless otherwise provided in the Certificate of Incorporation.
Section 5. REMOVAL OF DIRECTORS. Except to the extent limited by
law, the Certificate of Incorporation or these Bylaws, any director, any class
of directors, or the entire Board of Directors may be removed from office as a
director at any time, but only for cause, by the affirmative vote at a duly
called meeting of stockholders of at least a majority of the votes which all
stockholders would be entitled to cast at an annual election of directors. If
the Certificate of Incorporation should be amended so as to permit cumulative
voting or if cumulative voting shall otherwise become effective as to the
Corporation and if less than the entire Board of Directors is to be removed,
any one of the directors may not be removed if the votes cast against his
removal would be sufficient to elect him if then cumulatively voted at an
election of the entire Board of Directors.
Section 6. MEETINGS. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware.
Section 7. FIRST MEETING. The first meeting of the Board of
Directors containing a newly elected class of directors shall be held without
further notice immediately following the annual meeting of stockholders, and
at the same place, unless by a majority vote of the directors then elected and
serving, such time or place shall be changed.
Section 8. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 9. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President on twenty-four (24) hours' notice to
each director, either personally, by mail or by telegram; special meetings
shall be called by the President or Secretary in like manner and on like
notice on the written request of two (2) directors. Unless otherwise required
by law, the Certificate of Incorporation or these Bylaws, neither the business
to be transacted at, nor the purpose of, any special meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting.
Attendance of a director at any meeting shall constitute a waiver of
notice of such meeting, except when a director attends for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
Section 10. QUORUM; MAJORITY VOTE. At all meetings of the Board of
Directors, a majority of the number of directors then serving shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute, the Certificate of Incorporation or these Bylaws. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 11. CONSENT OF DIRECTORS. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all members of the Board or the
committee, as the case may be, consent thereto in writing, setting forth the
action so taken. Such consent shall have the same force and effect as a
unanimous vote at a meeting. The consent may be in more than one counterpart
so long as each director signs one of the counterparts.
Section 12. TELEPHONIC MEETING. Unless otherwise restricted by the
Certificate of Incorporation, subject to the provisions required or permitted
by law and these Bylaws for notice of meetings, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in and hold a meeting of the Board of Directors, or such
committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such a meeting shall constitute presence in
person at the meeting except when a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
Section 13. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. Except as limited by law, the Certificate of Incorporation,
these Bylaws or the resolution establishing such committee, each committee
shall have and may exercise all of the authority of the Board of Directors as
the Board of Directors may determine and specify in the respective resolutions
appointing each such committee. A majority of all of the members of any such
committee may elect the Chairman of such committee and may fix the time and
place of its meetings, unless the Board of Directors shall otherwise provide,
and meetings of any committee may be held upon such notice, or without notice,
as shall from time to time be determined by the members of any such committee.
At all meetings of any committee a majority of its members (or the member, if
only one) shall constitute a quorum for the transaction of business, and the
act of a majority of the members present shall be the act of any such
committee, unless otherwise specifically provided by law, the Certificate of
Incorporation, the Bylaws or the resolution establishing such committee. The
committees shall keep regular minutes of their proceedings and report the same
to the Board of Directors when required. The Board of Directors shall have
power at any time to change the number, subject as aforesaid, and members of
any such committee, to fill vacancies and to discharge any such committee.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Section 14. COMPENSATION OF DIRECTORS. By resolution of the Board of
Directors, the directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
Section 15. RESIGNATION. Any director may resign at any time by
written notice to the Corporation. Any such resignation shall take effect at
the date of receipt of such notice or at such other time as may be specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any director who
does not, for any reason whatsoever, stand for election at any meeting of
stockholders called for such purpose shall be conclusively deemed to have
resigned, effective as of the date of such meeting, for all purposes, and the
Corporation need not receive any written notice to evidence such resignation.
Section 16. LIABILITY OF DIRECTORS. To the fullest extent permitted
by the General Corporation Law of the State of Delaware, and any other
applicable law, as they now exist or may hereafter be amended, a director of
the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for an act or omission in such director's capacity as a
director of the Corporation. Any repeal or modification of this section shall
be prospective only and shall not adversely affect any limitation on the
personal liability of a director of the Corporation existing at the time of
such repeal or modification.
Section 17. INDEMNIFICATION. The Corporation shall indemnify and
advance expenses to any person who (i) is or was a director, officer, employee
or agent of the Corporation or (ii) serves or has served at the request of the
Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, to the fullest extent that a corporation
may or is required to grant indemnification or advance expenses to such person
under the General Corporation Law of the State of Delaware.
The Corporation may purchase and maintain insurance, and/or provide for
any other arrangement or arrangements (including, but not limited to, creation
of a trust fund, establishment of any form of self-insurance securing its
indemnity obligation by grant of a security interest or other lien on the
assets of the Corporation, or the establishment of a letter of credit,
guaranty, or surety arrangement), at the Corporation's expense, on behalf of
any such director, officer, employee, agent or person as specified in this
Article III, against any liability asserted against him and incurred by him in
such capacity or arising out of his status as such person, whether or not the
Corporation would have the power to indemnify him against such liability under
the General Corporation Law of the State of Delaware.
ARTICLE IV
NOTICES
Section 1. METHOD OF NOTICE. Whenever by law, the Certificate of
Incorporation, or these Bylaws, notice is required to be given to any
committee member, director, or stockholder, it shall not be construed to mean
personal notice, but any such notice may be given (a) in writing, by mail,
postage prepaid, addressed to such member, director or stockholder at his
address as it appears on the records of the Corporation, or (b) by any other
method permitted by law (including, but not limited to, telegram and, in the
case of directors, by telephone). Any notice required or permitted to be
given by mail shall be deemed to be delivered and given at the time when the
same is deposited in the United States mail as aforesaid. Any notice required
or permitted to be given by telegram shall be deemed to be delivered and given
at the time transmitted with all charges prepaid and addressed as aforesaid.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of law, the Certificate of Incorporation or these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be chosen
by the Board of Directors and may include a Chairman of the Board and/or a
Chief Executive Officer, and shall include a President, a Vice President, a
Secretary and a Treasurer. The Board of Directors may also choose additional
Vice Presidents, and one or more Assistant Secretaries and Assistant
Treasurers. The Board of Directors may appoint such other officers and agents
as it shall deem necessary and such persons shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined by the Board of Directors from time to time. Two or more offices
may be held by the same person. None of the officers need be a director or a
stockholder of the Corporation.
Section 2. COMPENSATION. The compensation of all officers and agents
of the Corporation shall be fixed from time to time by the Board of Directors
or pursuant to its direction. No officer shall be prevented from receiving
such compensation by reason of his also being a director.
Section 3. TERM; REMOVAL; RESIGNATION; VACANCIES. The officers of
the Corporation shall hold office until their successors are elected or
appointed and qualified, or until their earlier death, resignation,
retirement, disqualification or removal. Any officer or agent elected or
appointed by the Board of Directors may be removed at any time with or without
cause by the affirmative vote of a majority of the Board of Directors
whenever, in its judgment, the best interests of the Corporation shall be
served thereby, but any such removal shall be without prejudice to the
contractual rights, if any, of the person so removed. Any officer may resign
at any time by giving written notice to the Corporation. Any such resignation
shall take effect at the date of the receipt of such notice or at such other
time specified therein, and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective. Election or
appointment of an officer or agent shall not of itself create contract rights.
Any vacancy occurring in any office of the Corporation may be filled by the
Board of Directors for the unexpired portion of the term.
Section 4. THE CHAIRMAN OF THE BOARD. The Chairman of the Board (if
one be elected and serving) shall preside at all meetings of the Board of
Directors at which he may be present and shall perform such other duties as
may be assigned to him by the Board of Directors. He shall preside at all
meetings of the stockholders and Board of Directors unless he shall be absent
or unless he shall, at his option, designate the President to preside in his
stead at some particular meeting.
Section 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer (if
one be elected and serving) shall be the ranking and chief executive officer
of the Corporation. As such, he shall have, subject only to the Board,
general and active management and supervisory powers over the business and
affairs of the Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The Chief Executive Officer
shall have all of the powers granted by the Bylaws to the President, including
the power to make and sign contracts and agreements in the name and on behalf
of the Corporation. He shall also, in general, have supervisory powers over
the President, the other officers, the executive committees, and the business
activities of the Corporation, subject to the approval or review of the Board
of Directors.
Section 6. THE PRESIDENT. The President shall be the chief
administrative officer of the Corporation. The President may, in the absence
of the Chairman of the Board or if designated by the Chairman of the Board,
preside at meetings of the Board of Directors and of the stockholders and he
shall have power to call special meetings of the stockholders and the
directors for any purpose or purposes, appoint and discharge, subject to the
approval or review by the Chief Executive Officer and the Board of Directors,
employees and agents of the Corporation and fix their compensation, make and
sign contracts and agreements in the name and on behalf of the Corporation.
The President shall put into operation such business policies of the
Corporation as shall be decided upon by the Board of Directors and
communicated to the President by the Chief Executive or otherwise. The
President shall, if there is no Chief Executive Officer, or in the absence or
disability of the Chief Executive Officer, be the chief executive officer of
the Corporation, and perform the duties and exercise the powers of the Chief
Executive Officer. He shall see that the books, reports, statements and
certificates required by the statutes under which the Corporation is organized
or any other laws applicable thereto are properly kept, made and filed
according to law; and he shall generally do and perform all acts incident to
the office of the President or which are authorized or required by law. The
President shall perform such other duties as from time to time may be assigned
to him by the Board of Directors or the Chief Executive Officer of the
Corporation.
Section 7. VICE PRESIDENTS. The Vice Presidents in the order of
their seniority, unless otherwise determined by the Board of Directors, shall,
in the absence or disability of the President, perform the duties and exercise
the powers of the President. They shall perform such other duties and have
such other powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe.
Section 8. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for any committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or the Chief Executive
Officer, under whose supervision the Secretary shall be. The Secretary shall
keep in safe custody the seal of the Corporation and, when authorized by the
Board of Directors, affix the same to any instrument requiring it and, when so
affixed, it shall be attested by signature or by the signature of the
Treasurer or an Assistant Secretary. The Secretary also shall perform such
other duties and have such other powers as may be permitted by law or as the
Board of Directors or the Chief Executive Officer may from time to time
prescribe or authorize.
The Assistant Secretaries in the order of their seniority, unless
otherwise determined by the Board of Directors or the Chief Executive Officer,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary. They shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe. In the absence of the Secretary or an Assistant Secretary, the
minutes of all meetings of the Board of Directors and of stockholders shall be
recorded by such person as shall be designated by the Board of Directors.
Section 9. TREASURER AND ASSISTANT TREASURERS. If a Treasurer is
designated as an officer of the Corporation by the Board of Directors, the
Treasurer shall have the custody of the corporate funds and securities and
shall keep, or cause to be kept, full and accurate accounts and records of
receipts and disbursements and other transactions in books belonging to the
Corporation and shall deposit, or see to the deposit of, all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer
shall: (a) endorse or cause to be endorsed in the name of the Corporation for
collection the bills, notes, checks or other negotiable instruments received
by the Corporation; (b) sign or cause to be signed all checks issued by the
Corporation; and (c) pay out or cause to be paid out money as the Corporation
may require, taking vouchers therefor. In addition, he shall perform such
other duties as may be permitted by law or as the Board of Directors or the
Chief Executive Officer may from time to time prescribe, authorize or
delegate. The Board of Directors may by resolution delegate, with or without
power to re-delegate, any or all of the foregoing duties of the Treasurer to
other officers, employees or agents of the Corporation, and provide that other
officers, employees and agents shall have the power to sign checks, vouchers,
orders or other instruments on behalf of the Corporation. The Treasurer shall
render the Chief Executive Officer and the Board of Directors, whenever they
may require it, an account of his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond of such type, character and
amount as the Board of Directors may require.
If a Treasurer is not designated as an officer of the Corporation, the
functions of the Treasurer shall be performed by the Chief Executive Officer,
the President, the Secretary or such other officer or officers of the
Corporation as shall be designated by the Board of Directors at any time or
from time to time.
The Assistant Treasurers in the order of their seniority, unless
otherwise determined by the Board of Directors or the Chief Executive Officer,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as may be permitted by law or as the Board of Directors
or the Chief Executive Officer may from time to time prescribe, authorize or
delegate. If required by the Board of Directors, the Assistant Treasurers
shall give the Corporation a bond of such type, character and amount as the
Board of Directors may require.
ARTICLE VI
CERTIFICATES AND STOCKHOLDERS
Section 1. CERTIFICATES OF SHARES. Every holder of shares in the
Corporation shall be entitled to have a certificate signed by, or in the name
of the Corporation by, the President or a Vice President and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Such certificates shall be numbered and shall be entered in the books of the
Corporation as they are issued where a certificate is signed (1) by a transfer
agent or an assistant transfer agent or (2) by a transfer clerk acting on
behalf of the Corporation and a registrar, the signatures of any such
President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary may be facsimiles. In case any officer or officers who
have signed, or whose facsimile signature or signatures have been used on, any
such certificate or certificates shall cease to be such officer or officers of
the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
Corporation. Certificates for shares shall be in such form as shall be in
conformity to law or as may be prescribed from time to time by the Board of
Directors.
In the event the Corporation is authorized to issue shares of more than
one class, each certificate representing shares issued by the Corporation, to
the extent required by law or if directed by the Board of Directors, (1) shall
conspicuously set forth on the face or back of the certificate a full
statement of (a) all of the designations, preferences, limitations and
relative rights of the shares of each class authorized to be issued and (b) if
the Corporation is authorized to issue shares of any preferred or special
class or series, the variations in the relative rights and preferences of the
shares of each such series to the extent they have been fixed and determined
and the authority of the Board of Directors to fix and determine the relative
rights and preferences of subsequent series; or (2) shall conspicuously state
on the face or back of the certificate that (a) such a statement is set forth
in the Certificate of Incorporation on file in the office of the Secretary of
State of the State of Delaware and (b) the Corporation will furnish a copy of
such statement to the record holder of the certificate without charge on
written request to the Corporation at its principal place of business or
registered office. All certificates surrendered to the Corporation for
transfer shall be cancelled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
cancelled, except that in the cases of a lost, stolen, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and with such
indemnity, if any, to the Corporation as the Board of Directors may prescribe.
Certificates shall not be issued representing fractional shares of stock.
Section 2. LOST CERTIFICATES. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate or certificates, or
his legal representative, to advertise the same in such manner as it shall
require and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificates alleged to have been lost or destroyed.
Section 3. TRANSFERS OF SHARES. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, and otherwise meeting all legal requirements for
transfer, it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on the
books of the Corporation by the registered holder thereof, or by such holder's
attorney thereunto authorized by power of attorney and filed with the
Secretary of the Corporation or the transfer agent.
Section 4. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by Delaware
law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. DIVIDENDS. Subject to the provisions of the Certificate
of Incorporation, and the restrictions imposed by applicable law, if any,
dividends upon the outstanding shares of the Corporation may be declared by
the Board of Directors at any regular or special meeting.
Section 2. RESERVES. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interests
of the Corporation, and the Board of Directors may modify or abolish any such
reserve in the manner in which it was created.
Section 3. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
Section 4. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 5. SEAL. The Corporation may have a seal, and the seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the Corporation will have the
authority to affix the seal to any document requiring it.
Section 6. CONTRACTS. Subject to the provisions of Article V, the
Board of Directors may authorize any officer, officers, agent or agents to
enter into any contract or agreement of any nature whatsoever, including,
without limitation, any contract, deed, bond, mortgage, guaranty, deed of
trust, security agreement, pledge agreement, act of pledge, collateral
mortgage, collateral chattel mortgage or any other document or instrument of
any nature whatsoever, and to execute and deliver any such contract,
agreement, document or other instrument of any nature whatsoever for and in
the name of and on behalf of the Corporation, and such authority may be
general or confined to specific instances.
Section 7. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
Section 8. BOOKS AND RECORDS. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of its stockholders and Board of Directors and committees thereof,
and shall keep at its registered office or principal place of business, or at
the office of its transfer agent or registrar, a record of its stockholders,
giving the names and addresses of all stockholders and the number and class of
the shares held by each. Any books, records and minutes may be in written
form or in any other form capable of being converted into written form within
a reasonable time.
ARTICLE VIII
BYLAWS
Section 1. AMENDMENTS. These Bylaws may be altered, amended or
repealed and new Bylaws may be adopted by the stockholders by vote at a
meeting or by unanimous written consent without a meeting, or by a majority
vote of the Board of Directors at any regular or special meeting thereof.
Section 2. CONSTRUCTION. Whenever the context so requires, the
masculine shall include the feminine and neuter, and the singular shall
include the plural, and conversely. If any portion of these Bylaws shall be
invalid or inoperative, then, so far as is reasonable and possible:
(a) The remainder of these Bylaws shall be considered valid and
operative, and
(b) Effect shall be given to the intent manifested by the portion
held invalid or inoperative.
Section 3. TABLE OF CONTENTS; HEADINGS. The table of contents and
headings are for organization, convenience and clarity. In interpreting these
Bylaws, the table of contents and headings shall be subordinated in importance
to the written material.
I, the undersigned, being the Secretary of Triton Energy Corporation, DO
HEREBY CERTIFY THAT the foregoing are the bylaws of said corporation, as
adopted by the board of directors of said corporation on the 3 day of
May, 1995.
/s/
Robert B. Holland, III
Secretary
EXHIBIT 10.37
U.S. $65,000,000
CREDIT AGREEMENT
Dated as of March 28, 1995
Among
TRITON ENERGY CORPORATION
as Borrower
and
THE LENDERS PARTY HERETO
and
BANQUE PARIBAS HOUSTON AGENCY
as Agent
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
1.1. Defined Terms 1
1.2. Computation of Time Periods 25
1.3. Accounting Terms 25
1.4. Certain Terms 26
ARTICLE II. AMOUNTS AND TERMS OF THE REVOLVING
CREDIT LOANS 26
2.1. The Revolving Credit Loans 26
2.2. [Intentionally Omitted] 27
2.3. Making the Revolving Credit Loans 27
2.4. Fees 29
2.5. Reduction and Termination of the
Aggregate Commitments 29
2.6. Repayment 29
2.7. Prepayments 29
2.8. Conversion/Continuation Option 30
2.9. Interest 31
2.10. Interest Rate Determination and
Protection 32
2.11. Increased Costs 32
2.12. Illegality 33
2.13. Capital Adequacy 34
2.14. Payments and Computations 35
2.15. Taxes 37
2.16. Sharing of Payments, Etc. 39
ARTICLE III. CONDITIONS OF LENDING 46
3.1. Conditions Precedent to Initial
Revolving Credit Loans and Letters of
Credit 46
3.2. Conditions Precedent to Each Revolving
Credit Loan and Letter of Credit 50
3.3. Condition Precedent to Each Revolving
Credit Loan to Fund Purchase Money
Indebtedness 50
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ARTICLE IV. REPRESENTATIONS AND WARRANTIES 51
4.1. Corporate Existence; Compliance with
Law 51
4.2. Corporate Power; Authorization;
Enforceable Obligations 51
4.3. Taxes 53
4.4. Full Disclosure 53
4.5. Borrower Reports 53
4.6. Financial Matters 54
4.7. Litigation 55
4.8. Margin Regulations 55
4.9. Material Subsidiaries 55
4.10. ERISA 56
4.11. Liens 56
4.12. Ownership of TOH 57
4.13. No Burdensome Restrictions; No Defaults;
Contractual Obligations 57
4.14. [Intentionally Omitted] 58
4.15. Government Regulation 58
4.16. Insurance 58
4.17. Labor Matters 58
4.18. Force Majeure 59
4.19. Use of Proceeds 59
4.20. Environmental Protection 59
4.21. Intellectual Property 61
4.22. Title to Oil and Gas Properties 62
ARTICLE V. FINANCIAL COVENANT 62
ARTICLE VI. AFFIRMATIVE COVENANTS 62
6.1. Compliance with Laws, Etc. 62
6.2. Conduct of Business 63
6.3. Payment of Taxes, Etc. 63
6.4. Maintenance of Insurance 63
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6.5. Preservation of Corporate Existence,
Etc. 63
6.6. Access 64
6.7. Keeping of Books 64
6.8. Maintenance of Properties, Etc. 64
6.9. Performance and Compliance with Other
Covenants 64
6.10. Application of Proceeds 65
6.11. Financial Statements 65
6.12. Reporting Requirements 66
6.13. Employee Plans 67
6.14. Fiscal Year 68
6.15. Environmental Matters 68
6.16. Borrowing Base Matters 69
6.17. Designated Senior Indebtedness 70
ARTICLE VII. NEGATIVE COVENANTS 70
7.1. Liens, Etc. 70
7.2. Indebtedness 71
7.3. [Intentionally Omitted] 71
7.4. [Intentionally Omitted] 71
7.5. [Intentionally Omitted] 71
7.6. [Intentionally Omitted] 71
7.7. Change in Nature of Business or in
Capital Structure 71
7.8. Modification of Material Agreements 72
7.9. Accounting Changes 72
7.10. [Intentionally Omitted] 72
7.11. Adverse or Speculative Transactions 72
7.12. Amendments to U.S. trust Indenture 73
7.13. U.S. Trust Custodial Agreement 73
7.14. Crusader Shares 73
ARTICLE VIII. EVENTS OF DEFAULT 73
8.1. Events of Default 73
8.2. Remedies 76
ARTICLE IX. THE AGENT 77
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9.1. Authorization and Action 77
9.2. Agent's Reliance, Etc. 78
9.3. Paribas and Affiliates 78
9.4. Lender Credit Decision 79
9.5. Indemnification 79
9.6. Successor Agent 80
ARTICLE X. MISCELLANEOUS 81
10.1. Amendments, Etc. 81
10.2. Notices, Etc. 81
10.3. No Waiver; Remedies 82
10.4. Costs; Expenses; Indemnities 82
10.5. Right of Set-off 85
10.6. Binding Effect 85
10.7. Assignments and Participations 85
10.8. Governing Law; Severability 89
10.9. Submission to Jurisdiction; Service of
Process 89
10.10. Section Titles 90
10.11. Execution in Counterparts 90
10.12. Entire Agreement 90
10.13. Confidentiality 90
10.14. Waiver of Jury Trial 91
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SCHEDULES
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Schedule I - Commitments
Schedule II - Applicable Lending Offices and
Addresses for Notices
Schedule 4.7 - Litigation
Schedule 4.9 - Material Subsidiaries
Schedule 4.16 - Insurance
Schedule 4.20 - Environmental Matters
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EXHIBITS
Exhibit A- Form of Revolving Credit Note
Exhibit B- Form of Notice of Borrowing
Exhibit C- Form of Notice of Conversion or Continuation
Exhibit D- Form of Letter of Credit Request
Exhibit E- Form of Letter of Credit Reimbursement Agreement
Exhibit F- Form of Assignment and Acceptance
Exhibit G- Form of Security Agreement
Exhibit H-1- Form of Opinion of U.S. Counsel for the Loan
Parties
Exhibit H-2- Form of Opinion of Australian Counsel for the Loan
Parties
Exhibit I- Form of Independent Public Accountants'
Certification
APPENDIX- U.S. Trust Custodial Account Investment Guidelines
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CREDIT AGREEMENT, dated as of March 28, 1995, among Triton Energy
Corporation, a Texas corporation (the "Borrower"), the financial institutions
listed on the signature pages hereof (each individually a "Lender" and
collectively the "Lenders") and BANQUE PARIBAS HOUSTON AGENCY ("Paribas") as
agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make revolving
credit advances of up to $65,000,000 in aggregate principal amount outstanding
at any one time for the purposes hereinafter specified; and
WHEREAS, the Lenders are willing to make funds available for such
purposes upon the terms and subject to the conditions set forth herein; and
WHEREAS, the Borrower has requested that the Agent provide Letters
of Credit for general corporate purposes and to support the Borrower's working
capital requirements; and
WHEREAS, the Agent is willing to issue Letters of Credit for such
purpose upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Affiliate" means, as to any Person, any Subsidiary of such Person
and any other Person which, directly or indirectly, controls, is controlled by
or is under common control with such Person and includes each officer or
director or general partner of such Person, and each Person who is the
beneficial owner of 5% or more of any class of Voting Stock of such Person.
For the purposes of this definition, "control" means the possession of the
power to direct or cause the direction of management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Credit Agreement, together with all Exhibits
and Schedules hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
<PAGE>
"Aggregate Commitments" shall equal $65,000,000 as the same may be
reduced or terminated pursuant to Section 2.5 hereof; provided, however, that
so long as Paribas is the only Lender, the Aggregate Commitments shall equal
$40,000,000, and thereafter, the Aggregate Commitments shall equal the lesser
of (i) $65,000,000 and (ii) the sum of (A) the Commitment of Paribas and (B)
the aggregate Commitments of the other Lender(s).
"Applicable Eurodollar Rate Margin" means:
(i) at the time a Notice of Borrowing for a
Eurodollar Rate Loan or a Letter of Credit Request is submitted by the
Borrower, when the sum of (a) aggregate Revolving Credit Loans outstanding
plus (b) aggregate Letter of Credit Obligations outstanding is less than 34.00%
of the Borrowing Base then in effect, 1.00%;
(ii) at the time a Notice of Borrowing for a
Eurodollar Rate Loan or a Letter of Credit Request is submitted by the
Borrower, when the sum of (a) aggregate Revolving Credit Loans outstanding
plus (b) aggregate Letter of Credit Obligations outstanding is more than or
equal to 34.00% of the Borrowing Base then in effect, but less than 67.00% of
the Borrowing Base then in effect, 1.25%; and
(iii) at the time a Notice of Borrowing for a
Eurodollar Rate Loan or a Letter of Credit Request is submitted by the
Borrower, when the sum of (a) aggregate Revolving Credit Loans outstanding
plus (b) aggregate Letter of Credit Obligations outstanding is more than or
equal to 67.00% of the Borrowing Base then in effect, 1.50%.
"Applicable Lending Office" means, with respect to each Lender, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit F.
"Available Credit" means, at any time, an amount equal to (a) the
lower of (i) the then effective Aggregate Commitments of the Lenders or (ii)
the Borrowing Base at such time, minus (b) the aggregate of (i) the
outstanding principal amount of the Revolving Credit Loans at such time plus
(ii) the outstanding Letter of Credit Obligations at such time.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the higher of:
(a) the rate of interest announced publicly by
Citibank, N.A. in New York, New York, from time to time, as Citibank, N.A.'s
base rate; and
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(b) the sum (adjusted to the nearest 1/8 of one
percent or, if there is no nearest 1/8 of one percent, to the next higher 1/8
of one percent) of (i) one percent per annum plus (ii) the Federal Funds Rate.
"Base Rate Loan" means any outstanding principal amount of the Loans
of any Lender that bears interest with reference to the Base Rate.
"Borrower Equitable Mortgage" means an equitable mortgage over the
Crusader Shares owned by the Borrower in favor of the Agent, as Mortgagee, as
such equitable mortgage may be amended, supplemented or modified from time to
time.
"Borrower Reports" has the meaning specified in Section 4.5(a).
"Borrowing" means a borrowing consisting of Revolving Credit Loans
made on the same day by the Lenders ratably according to their respective
Commitments.
"Borrowing Base" means, at any time, the sum of (i) 40% of the
average per share closing price for Crusader Shares for the two-week period
immediately preceding, but excluding the date of the current Borrowing Base
determination, based on the last sale price for ordinary shares quoted in the
Australian Stock Exchange Ltd, times the number of Crusader Shares that are,
at the date the current Borrowing Base is determined, subject to the Equitable
Mortgages; and (ii) 80% of the Market Value of the aggregate Marketable
Securities that are, at the date the current Borrowing Base is determined, on
deposit for the account of the Borrower in the U.S. Trust Custodial Account;
provided, however, that if as of September 30, 1995, the Commitment of Paribas
is greater than $20,000,000, then from and after such date the Borrowing Base
shall not include as a component clause (i) above; and in such event, the
Agent shall release any Liens the Agent has with respect to the Crusader
Shares and this Agreement, without further act or evidence, shall be deemed to
be amended to delete all references to Crusader and the Crusader Shares,
including such references in all covenants herein.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to a Eurodollar Rate Loan, a day on which dealings are
also carried on in the London interbank market.
"Capitalized Lease" means, as to any Person, any lease of property
by such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in conformity with GAAP.
"Capitalized Lease Obligations" means, as to any Person, the
capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capitalized Leases, as determined on a consolidated basis
in conformity with GAAP.
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"Cash Equivalents" means (i) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or insured by
the United States government or any agency thereof, (ii) certificates of
deposit, eurodollar time deposits, overnight bank deposits and bankers'
acceptances of any Lender or any commercial bank that would qualify as an
Eligible Assignee hereunder having maturities of one year or less from the date
of acquisition, and (iii) commercial paper of an issuer rated at least "A-1"
by Standard & Poor's Corporation or "P-1" by Moody's Investors Service, Inc.,
or carrying an equivalent rating by a nationally recognized rating agency if
both of the two named rating agencies cease publishing ratings of investments.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all
of the assets of the Borrower to any Person or related group for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended (a "Group"),
together with any Affiliates of any such Group; (ii) the stockholders of the
Borrower shall approve any plan or proposal for the liquidation or dissolution
of the Borrower; or (iii) any person or Group, together with any Affiliates
thereof, shall, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, have become the
beneficial owner (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended), directly or indirectly, of securities of
the Borrower representing at least 40% of the Voting Stock of the Borrower.
"Chemical Indenture" means the Indenture dated as of November 13,
1992 between the Borrower, as issuer, and Chemical Bank, as trustee, pursuant
to which the Borrower issued $240,000,000 in aggregate principal amount of its
Senior Subordinated Discount Notes due 1997, as amended and supplemented by a
First Supplemental Indenture dated as of July 1, 1993 and a Second
Supplemental Indenture dated as of August 16, 1993.
"Closing Date" means the first date on which any Revolving Credit
Loan is made.
"Code" means the Internal Revenue Code of 1986 (or any successor
legislation thereto), as amended from time to time.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Collateral Securities.
"Collateral Securities" means the Security Agreements, the Equitable
Mortgages, the Purchase Money Liens and any other document executed and
delivered by a Loan Party granting a Lien on any of its property to secure
payment of the Obligations.
"Commitment" means, as to each Lender, the commitment of such Lender
to make Revolving Credit Loans to the Borrower pursuant to Section 2.1, not to
exceed an aggregate principal amount equal to such Lender's Ratable Portion of
the Aggregate Commitments then in effect.
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"Contingent Obligation" means, as applied to any Person, any direct
or indirect liability, contingent or otherwise, of such Person with respect to
any Indebtedness or Contractual Obligation of another Person, if the purpose
or intent of such Person in incurring the Contingent Obligation is to provide
assurance to the obligee of such Indebtedness or Contractual Obligation that
such Indebtedness or Contractual Obligation will be paid or discharged, or
that any agreement relating thereto will be complied with, or that any holder
of such Indebtedness or Contractual Obligation will be protected (in whole or
in part) against loss in respect thereof. Contingent Obligations of a Person
include, without limitation, (a) the direct or indirect guarantee, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of
an obligation of another Person, and (b) any liability of such Person for an
obligation of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such obligation or any
security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease
(as lessor or lessee) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such obligation or to
assure the holder of such obligation against loss, or (v) to supply funds to
or in any other manner invest in such other Person (including, without
limitation, to pay for property or services irrespective of whether such
property is received or such services are rendered), if in the case of any
agreement described under subclause (i), (ii), (iii), (iv) or (v) of this
sentence the primary purpose or intent thereof is as described in the
preceding sentence. The amount of any Contingent Obligation shall be equal to
the amount of the obligation so guaranteed or otherwise supported.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any Contract (excluding a Loan Document) to which such Person is
a party or by which it or any of its property is bound or to which any of its
properties is subject.
"Crusader" means Crusader Limited [ACN 009 785 326], a corporation
organized under the laws of Queensland, Australia.
"Crusader Notes" means the 12% Convertible Subordinated Unsecured
Notes due January 31, 1999 issued by Crusader to TOH, among others.
"Crusader Shares" means the ordinary shares of A $.20 in the capital
of Crusader.
"Default" means any event which with the passing of time or the
giving of notice or both would become an Event of Default.
<PAGE>
"Deficiency" has the meaning specified in Section 2.7(b).
"DOL" means the United States Department of Labor, or any successor
thereto.
"Dollars" and the sign "$" each mean the lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule II or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"EBITDA" means, for any Person for any period, the Net Income (Loss)
of such Person for such period taken as a single accounting period (excluding
the effect of cumulative changes in GAAP and discontinued operations), plus
(a) the sum of the following amounts of such Person and its Subsidiaries for
such period determined on a consolidated basis in conformity with GAAP to the
extent included in the determination of such Net Income (Loss): (i)
depreciation expense, (ii) amortization expense, (iii) Interest Expense, (iv)
income tax expense, (v) extraordinary losses (and other losses on asset sales
not otherwise included in extraordinary losses determined on a consolidated
basis in conformity with GAAP) and (v) non-cash write-downs of the carrying
value of the Borrower's Oil and Gas Properties as a result of application of
the ceiling limitation prescribed by the Securities and Exchange Commission;
less (b) the sum of the following amounts of such Person and its Subsidiaries
determined on a consolidated basis in conformity with GAAP to the extent
included in the determination of such Net Income (Loss): (i) extraordinary
gains and other gains on asset sales not otherwise included in extraordinary
gains determined on a consolidated basis in conformity with GAAP, (ii) the Net
Income (Loss) of any other Person that is accounted for by the equity method
of accounting except to the extent of the amount of dividends or distributions
paid to such Person, and (iii) the Net Income (Loss) of any other Person
acquired by such Person or a Subsidiary of such Person in a transaction
accounted for as a pooling of interests for any period prior to the date of
such acquisition.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $5,000,000,000; (ii) a commercial bank organized under the laws of
any other country which is a member of the OECD, or a political subdivision of
any such country, and having total assets in excess of $5,000,000,000,
provided that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD or the Cayman Islands; (iii) the central bank of any country which is
a member of the OECD; or any State thereof, and having total assets in excess
of $3,000,000,000; (iv) an insurance company organized under the laws of the
United States, or any State thereof, and having total assets in excess of
$5,000,000,000; (v) any Lender; (vi) any Affiliate of any Lender; and (vii)
any Person, other than an Affiliate of a Loan Party, acceptable to the Agent.
<PAGE>
"Environmental Claim" means any accusation, allegation, notice of
violation, action, claim, Environmental Lien, demand, abatement or other Order
or direction (conditional or otherwise) by any Governmental Authority or any
other Person for personal injury (including sickness, disease or death),
tangible or intangible property damage, damage to the environment, nuisance,
pollution, contamination or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon (i) the
existence, or the continuation of the existence, of a Release (including,
without limitation, sudden or non-sudden accidental or non-accidental
Releases) of, or exposure to, any Hazardous Material or odor, audible noise or
other nuisance, or other Release in, into or onto the environment (including,
without limitation, the air, soil, surface water or groundwater) at, in, by,
from or related to any property owned, operated or leased by the Borrower or
any of its Subsidiaries or any activities or operations thereof; (ii) the
environmental aspects of the transportation, storage, treatment or disposal of
Hazardous Materials in connection with any property owned, operated or leased
by the Borrower or any of its Subsidiaries or their operations or facilities;
or (iii) the violation, or alleged violation, of any Environmental Laws,
Orders or Environmental Permits of or from any Governmental Authority relating
to environmental matters connected with any property owned, leased or operated
by the Borrower or any of its Subsidiaries.
"Environmental Contract" means any contract, agreement, undertaking,
indenture, note, bond, loan, instrument, lease, conditional sales contract,
mortgage, deed of trust, license, franchise, insurance policy, commitment or
other arrangement or agreement pursuant to which an Environmental Liability is
created, assumed, undertaken or indemnified against.
"Environmental Laws" means any federal, state, local or foreign law
(including common law), statute, code, ordinance, rule, regulation or other
requirement relating in any way to the environment, natural resources, or
public or employee health and safety and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. 9601 et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. 1801 et seq., the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. 136 et seq., the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. 6901 et seq., the Toxic Substances Control Act, 15
U.S.C. 2601 et seq., the Clean Air Act, 42 U.S.C. 7401 et seq., the Clean
Water Act, 33 U.S.C. 1251 et seq., the Occupational Safety and Health Act, 29
U.S.C. 651 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. 2701 et
seq., as such laws have been amended or supplemented, and the regulations
promulgated pursuant thereto, and all analogous state and local statutes.
"Environmental Liabilities" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all fees, disbursements and expenses of
counsel, experts and consultants and costs of investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
claim or demand by any other Person, whether based in contract, tort, implied
<PAGE>
or express warranty, strict liability, criminal or civil statute, including,
without limitation, any thereof arising under any Environmental Law,
Environmental Permit, order or agreement with any Governmental Authority or
other Person, and which relate to any environmental, health or safety
condition, or a Release or threatened Release, and result from the past,
present or future operations of, or ownership of property by, such Person
or any of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
Authority arising under any Environmental Law.
"Environmental Permit" means any Permit required under any
applicable Environmental Laws or Order and all supporting documents associated
therewith.
"Equitable Mortgages" means the Borrower Equitable Mortgage and the
TOH Equitable Mortgage.
"ERISA" means the Employee Retirement Income Security Act of 1974
(or any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with any
Loan Party within the meaning of Section 414 (b), (c), (m) or (o) of the Code.
"ERISA Event" means (i) an event described in Sections 4043(b)(1),
(2), (3), (5), (6), (8) or (9) of ERISA with respect to a Pension Plan; (ii)
the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (iii) the
complete or partial withdrawal of any Loan Party or any ERISA Affiliate from
any Multiemployer Plan or the insolvency of any Multiemployer Plan; (iv) the
filing of a notice of intent to terminate a Pension Plan or the treatment of a
plan amendment as a termination under Section 4041 of ERISA; (v) the
institution of proceedings by the PBGC to terminate or appoint a trustee to
administer a Pension Plan or Multiemployer Plan; (vi) the failure to make any
required contribution to a Pension Plan; (vii) any other event or condition
which might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; (viii) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA; (ix) a prohibited transaction (as described in
Code Section 4975 or ERISA Section 406) shall occur with respect to any Plan;
or (x) any Loan Party or ERISA Affiliate shall request a minimum funding
waiver from the IRS with respect to any Pension Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
<PAGE>
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" below its
name on Schedule II (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period, an interest rate
per annum equal to the rate per annum obtained by dividing (a) the rate of
interest determined by the Agent to be the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rates per annum at which deposits in U.S. dollars are offered
by the principal office of Paribas in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) three Business Days before
the first day of such Interest Period in an amount substantially equal to the
Eurodollar Rate Loan of Paribas during such Interest Period and for a period
equal to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Loan" means any outstanding principal amount of the
Revolving Credit Loans of any Lender that, for an Interest Period, bears
interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" for any Interest Period means
the reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities which includes deposits by reference to which the Eurodollar Rate
is determined) having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.1.
"Existing Letter of Credit" means the standby letter of credit dated
March 10, 1995, as amended as of March 15, 1995, with an expiry date of March
31, 1996, issued by Paribas for the account of Triton Energy Corporation for
the benefit of Banco de la Produccion, S.A., Quito in the original face amount
of $2,810,000.40.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it.
<PAGE>
"Final Maturity Date" means September 30, 1996.
"Fiscal Quarter" means each of the three month periods ending on
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on December 31.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the
date of determination except that, for purposes of Article V, GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the audited financial
statements referred to in Section 4.5.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Material" means any substance, material or waste which is
regulated by any Governmental Authority of the United States or other national
government, including, without limitation, any material, substance or waste
which is defined as a "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," "restricted hazardous waste,"
"contaminant," "toxic waste" or "toxic substance" under any provision of
Environmental Law, which includes, but is not limited to, petroleum, petroleum
products, asbestos, urea formaldehyde and polychlorinated biphenyls.
"Hedging Contracts" means (i) interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance, and other agreements or arrangements designed to provide protection
against fluctuations in interest rates, and (ii) commodity price swap
agreements, commodity forward sale or prepayment agreements and other hedging
agreements or arrangements designed to provide protection against fluctuation
in commodity prices.
"Hydrocarbon Interests" means all rights, titles, interests and
estates in and to oil and gas leases, oil, gas and mineral leases, oil and gas
concession agreements, production sharing and similar agreements, or other
liquid or gaseous hydrocarbon leases, mineral fee interests, overriding
royalty and royalty interests, net profit interests and production payment
interests, including any reserved or residual interests of whatever nature and
without regard to whether such rights cover or exist with respect to lands
located within or without the United States.
<PAGE>
"Hydrocarbons" means oil, gas, casinghead gas, drip gasoline,
natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons and all products refined therefrom and all other minerals.
"Indebtedness" of any Person means (i) all indebtedness of such
Person for borrowed money (including, without limitation, reimbursement and
all other obligations with respect to surety bonds, letters of credit and
bankers' acceptances, whether or not matured) or for the deferred purchase
price of property or services (provided, however, that any indebtedness
properly classified under GAAP as a current account payable shall not
constitute "Indebtedness" hereunder), (ii) all obligations of such Person
evidenced by notes, bonds, debentures or similar instruments, (iii) all
obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (iv) all Capitalized Lease Obligations of such Person, (v) all
Contingent Obligations of such Person, (vi) all obligations of such Person to
purchase, redeem, retire, defease or otherwise acquire for value any Stock or
Stock Equivalents of such Person, valued, in the case of redeemable preferred
stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends, (vii) all obligations of such Person under
Hedging Contracts, and (viii) all Indebtedness referred to in clause (i),
(ii), (iii), (iv), (v), (vi) or (vii) above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property (including, without limitation,
accounts and general intangibles) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness
(provided, however, indebtedness described in this clause (viii) that such
Person has not assumed or become liable for the payment of shall constitute
"Indebtedness" hereunder only to the extent of the book value of the property
securing such indebtedness), (ix) in the case of the Borrower, the
Obligations, (x) all liabilities of such Person for the return of deposits or
payments on account, (xi) all liabilities of such Person under Title IV of
ERISA, and (xii) all liabilities of such Person that would be shown as such on
a balance sheet of such Person prepared in conformity with GAAP.
"Indemnified Matters" has the meaning specified in Section 10.4(b).
"Indemnitee" has the meaning specified in Section 10.4(b).
"Indentures" means the Chemical Indenture and the U.S. Trust
Indenture.
"Interest Expense" means, for any Person for any period, gross
interest expense paid in cash by such Person and its Subsidiaries for such
period determined on a consolidated basis in conformity with GAAP.
<PAGE>
"Interest Period" means, in the case of any Eurodollar Rate Loan,
(i) initially, the period commencing on the date such Eurodollar Rate Loan is
made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate
Loan and ending one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Borrowing or Notice of Conversion or Continuation
given to the Agent pursuant to Section 2.3 or 2.8, and (ii) thereafter, if
such Loan is continued, in whole or in part, as a Eurodollar Rate Loan
pursuant to Section 2.8, a period commencing on the last day of the
immediately preceding Interest Period therefor and ending one, two, three or
six months thereafter, as selected by the Borrower in its Notice of Conversion
or Continuation given to the Agent pursuant to Section 2.8; provided, however,
that:
(a) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, in the case of Eurodollar Rate Loans only,
the result of such extension would be to extend such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month;
(c) the Borrower may not select any Interest Period which ends
after the Final Maturity Date;
(d) the Borrower may not select any Interest Period in respect
of Revolving Credit Loans having an aggregate principal amount of less than
$5,000,000, or an integral multiple of $1,000,000 in excess thereof; and
(e) there shall be outstanding at any one time no more than five
Interest Periods in the aggregate.
"IRS" means the Internal Revenue Service, or any successor thereto.
"Investment" means any loan or advance to any Person; the ownership
or acquisition of any Stock, Stock Equivalents, other equity interest,
obligations or other securities of, or all or substantially all of the assets
of, any Person or all or substantially all of the assets constituting the
business of a division, branch or other unit operation of any Person' or the
entering into of any joint venture or partnership with, or the making or
maintenance of any capital contribution to, or other investment in, any
Person; or the incorporation or organization of any Subsidiary which was not
in existence on the Closing Date.
"Legal Proceedings" means any judicial, administrative or arbitral
actions, suits, proceedings (public or private), claims or governmental
proceedings.
<PAGE>
"Letter of Credit" means any standby letter of credit issued for the
account of the Borrower or any of its Subsidiaries by the Agent pursuant to
Section 2.17.
"Letter of Credit Obligations" means, at any particular time, all
liabilities of the Borrower to the Agent with respect to Letters of Credit,
whether or not any such liability is contingent, and includes the sum of (i)
Letter of Credit Reimbursement Obligations and (ii) Letter of Credit Undrawn
Amounts.
"Letter of Credit Reimbursement Agreement" has the meaning specified
in Section 2.17(c).
"Letter of Credit Reimbursement Obligations" means the matured
reimbursement or repayment obligations of the Borrower to each Issuer with
respect to Letters of Credit pursuant to Letter of Credit Reimbursement
Agreements.
"Letter of Credit Request" has the meaning specified in Section
2.17(d).
"Letter of Credit Undrawn Amounts" means the aggregate amounts that
may be drawn under all Letters of Credit outstanding at any time.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a Capitalized Lease Obligation, any financing lease
having substantially the same economic effect as any of the foregoing, and the
filing, under the Uniform Commercial Code or comparable law of any
jurisdiction, of any financing statement naming the owner of the asset to
which such Lien relates as debtor.
"Loan Documents" means, collectively, this Agreement, the Revolving
Credit Notes, the Collateral Securities and each certificate, agreement or
document executed by a Loan Party and delivered to the Agent or any Lender in
connection with or pursuant to any of the foregoing.
"Loan Party" means each of the Borrower and TOH.
"Majority Lenders" means, at any time, Lenders having at least
66-2/3% of the Aggregate Commitments.
"Market Value" means the total "current value" of all Marketable
Securities on deposit in the U.S. Trust Custodial Account, as reflected in the
U.S. Trust Custodial Account Statement delivered from time to time pursuant to
Section 6.16 hereof; provided, however, if for any reason any such statement
does not reflect a "current value" for such Marketable Securities, the Market
Value thereof shall be determined by the Agent upon reference by the Agent to
recent sales quotations furnished by a recognized securities exchange.
<PAGE>
"Marketable Securities" means instruments or securities on deposit
in the U.S. Trust Custodial Account that were purchased for the account of the
Borrower pursuant to the Triton Energy Corporation Investment Guidelines
attached hereto as an Appendix, qualified as noted in such Appendix with
respect to instruments or securities issued by certain foreign corporations,
foreign commercial banks and foreign governments, which shall not constitute
Marketable Securities for purposes of this Agreement.
"Material Adverse Change" means a material adverse change in any of
(i) the condition (financial or otherwise), business, performance, operations
or properties of the Borrower and its Subsidiaries taken as a whole, (ii) the
legality, validity or enforceability of any Loan Document, (iii) the
perfection or priority of the Liens granted pursuant to the Collateral
Securities, (iv) the ability of the Borrower to repay the Obligations or of
any Loan Party to perform its obligations under any Loan Document, or (v) the
rights and remedies of the Lenders or the Agent under the Loan Documents.
"Material Adverse Effect" means an effect that results in or causes,
or has a reasonable likelihood of resulting in or causing, a Material Adverse
Change.
"Material Subsidiary" means any of (i) Triton Colombia, Inc., a
Delaware corporation, and Triton Pipeline Colombia, Inc., a corporation
organized under the laws of the Cayman Islands or (ii) Triton Oil Company of
Thailand, a Texas corporation.
"Multiemployer Plan" means, as of any applicable date, a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, and to which
any Loan Party, any of its Subsidiaries or any ERISA Affiliate is making, is
obligated to make, or within the six-year period ending at such date, has made
or been obligated to make, contributions on behalf of participants who are or
were employed by any of them.
"Net Income (Loss)" means, for any Person for any period, the
aggregate of net income (or loss) from continuing operations of such Person
and its Subsidiaries for such period, determined on a consolidated basis in
conformity with GAAP.
"Non-Funding Lender" has the meaning specified in Section 2.14(f).
"Notice of Borrowing" has the meaning specified in Section 2.3(a).
"Obligations" means the Revolving Credit Loans, the Letter of Credit
Reimbursement Obligations, the Purchase Money Indebtedness and all other
advances, debts, liabilities, obligations, covenants and duties owing by the
Borrower to the Agent, any Lender, any Affiliate of any of them or any
Indemnitee, of every type and description, present or future, whether or not
evidenced by any note, guaranty or other instrument, arising under this
Agreement or under any other Loan Document, whether or not for the payment of
money, loan, guaranty, indemnification, foreign exchange transaction or
Hedging Contract or in any other manner, whether direct or indirect
(including, without limitation, those acquired by assignment), absolute or
<PAGE>
contingent, due or to become due, now existing or hereafter arising and
however acquired. The term "Obligations" includes, without limitation,
all interest, charges, expenses, fees, attorneys' fees and disbursements
and any other sum chargeable to the Borrower under this Agreement or any
other Loan Document.
"OCENSA" means Oleoducto Central S.A., a corporation organized under
the laws of Colombia.
"OECD" means the Organization for Economic Cooperation and
Development.
"Oil and Gas Properties" means Hydrocarbon Interests; any 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 body or agency
having jurisdiction) 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 from or attributable to the Hydrocarbon Interests, the lands covered
thereby and all oil in tanks and all rents, issues, profits, proceeds,
products, revenues and other income from or attributable to the Hydrocarbon
Interests; all tenements, hereditaments, appurtenances and properties in
anywise appertaining, belonging, affixed or incidental to the Hydrocarbon
Interests, 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 (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,
pipelines, 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, replacement, accessions and
attachments to any and all of the foregoing.
"Order" means any order, injunction, judgment, decree, ruling,
assessment or arbitration award.
"Other Taxes" has the meaning specified in Section 2.15(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
<PAGE>
"Pension Plan" means a plan, other than a Multiemployer Plan, which
is covered by Title IV of ERISA or Code Section 412 and which any Loan Party,
any of its Subsidiaries or any ERISA Affiliate maintains, contributes to or
has an obligation to contribute to on behalf of participants who are or were
employed by any of them.
"Permit" means any permit, approval, authorization, license,
variance, registration, permission or consent required from a Governmental
Authority under an applicable Requirement of Law.
"Permitted Liens" means, with respect to Oil and Gas Properties:
(i) Liens for Taxes, assessments or other governmental charges or levies not
yet due or which are being contested in good faith by appropriate action; (ii)
Liens in connection with workmen's compensation, unemployment insurance or
other social security, old age pension or public liability obligations; (iii)
legal or equitable encumbrances deemed to exist by reason of the existence of
any litigation or other legal proceeding or arising out of a judgment or award
with respect to which an appeal is being prosecuted; (iv) landlord'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 construction or improvement
of any Oil and Gas Property in respect of obligations which are not past due
for more than thirty (30) days or which are being contested in good faith by
appropriate proceedings; (v) Liens arising under operating agreements in
respect of obligations which are not yet due or which are being contested in
good faith by appropriate proceedings; (vi) Liens and minor irregularities in
or deficiencies of title which do not materially interfere with the
occupation, use and enjoyment by the owner of such Oil and Gas Properties in
the normal course of business as presently conducted or materially impair the
value thereof for such business; (vii) Liens reserved in oil, gas and/or
mineral leases for bonus or rental payments and for compliance with the terms
of such leases; (viii) easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not materially adversely
interfere with the occupation, use and enjoyment of the Oil and Gas Property
encumbered thereby; (ix) any obligations or duties affecting any of the Oil
and Gas Properties to any municipality or public authority with respect to any
franchise, grant, license or permit which do not materially impair the use of
such Oil and Gas Property for the purposes for which it is held; (x) zoning
laws or ordinances and municipal regulations which do not operate to
materially interfere with the current operations on the Oil and Gas Property
affected thereby; (xi) undetermined or inchoate Liens and charges incurred
incidental to maintenance, development, production or operation of any of the
Oil and Gas Properties; (xii) defects or irregularities in the titles to any
Oil and Gas Property which defects or irregularities have been cured by
possession under applicable statutes of limitation or which do not have a
Material Adverse Effect; and (xiii) deposits or pledges to secure the payment
of workmen's compensation, unemployment insurance or other social security
benefits or obligations, public or statutory obligations, surety or appeal
bonds or other obligations of a like general nature incurred in the ordinary
course of business.
<PAGE>
"Person" means an individual, partnership, corporation (including,
without limitation, a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a Governmental
Authority.
"Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, which any Loan Party or any of its Subsidiaries maintains, contributes
to or has an obligation to contribute to on behalf of participants who are or
were employed by any of them.
"Purchase Money Indebtedness" means with respect to assets acquired
or constructed after the Closing Date, including without limitation equity
interests in OCENSA, Indebtedness secured by Purchase Money Liens.
"Purchase Money Liens" means with respect to assets acquired or
constructed after the Closing Date, including without limitation equity
interests in OCENSA, Liens securing Borrowings hereunder, the proceeds of
which were used by the Borrower or a Subsidiary thereof to fund the cost of
any such acquisition or construction.
"Ratable Portion" or "ratably" means, with respect to any Lender,
the quotient obtained by dividing the Commitment of such Lender by the
Aggregate Commitments of all Lenders except as otherwise specifically provided
herein.
"Register" has the meaning specified in Section 10.7(c).
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, emptying, injection, deposit, disposal, discharge,
dispersal, leaching or migration on or into the indoor or outdoor environment
or into or out of any property.
"Remedial Action" means all actions required or voluntarily
undertaken to (i) clean up, remove, treat or in any other way address any
Hazardous Material or other substance in the indoor or outdoor environment,
(ii) prevent the Release or threat of Release, or minimize the further Release,
of any Hazardous Material or other substance so it does not migrate or
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment, (iii) perform pre-remedial studies and investigations or
post-remedial monitoring and care, or (iv) bring facilities on any property
owned, leased or operated by the Borrower or any of its Subsidiaries into
compliance with all Environmental Laws and Environmental Permits.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws, Memorandum and Articles of Association or other
organizational or governing documents of such Person, and all federal, state
and local laws, rules and regulations including, without limitation, federal,
state or local securities, antitrust and licensing laws, all applicable trade
laws and requirements, and all disclosure requirements of Environmental Laws,
ERISA and all Orders, judgments, decrees or other determinations of any
Governmental Authority or arbitrator, applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject.
<PAGE>
"Responsible Officer" means, with respect to any Person, any of the
principal executive officers or general partners of such Person.
"Revolving Credit Loan" has the meaning specified in Section 2.1.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender in a principal amount equal to the amount
of such Lender's Commitment as originally in effect, in substantially the form
of Exhibit A, evidencing the aggregate Indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Loans made by such Lender and such
Lender's Ratable Portion of all Letter of Credit Obligations.
"Security Agreement" means an agreement, in substantially the form
of Exhibit G, executed by the Borrower, as such agreement may be amended,
supplemented or modified from time to time.
"SFAS 95" has the meaning specified in Section 4.5(b).
"Stock" means shares of capital stock, beneficial or partnership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation or equivalent entity, whether voting or non-voting, and
includes, without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase
or subscribe for any stock, whether or not presently convertible, exchangeable
or exercisable.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which an aggregate of 50% or more of
the outstanding Stock having ordinary voting power to elect a majority of the
board of directors, managers, trustees or other controlling persons, is, at
the time, directly or indirectly, owned or controlled by such Person and/or
one or more Subsidiaries of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the happening of any contingency).
"Tax Affiliate" means, as to any Person, (i) any Subsidiary of such
Person, and (ii) any Affiliate of such Person with which such Person files or
is eligible to file consolidated, combined or unitary tax returns.
"Tax Return" has the meaning specified in Section 4.3.
"Taxes" has the meaning specified in Section 2.15(a).
"Termination Date" means the earliest of (i) the Final Maturity Date
and (ii) the date of termination in whole of the Commitments pursuant to
Section 2.5 or 8.2.
<PAGE>
"TOH" means Triton Oil (Holdings) Pty Ltd [ACN 000 695 492], a
corporation organized under the laws of New South Wales, Australia and a
wholly owned Subsidiary of the Borrower.
"TOH Equitable Mortgage" means an equitable mortgage over the
Crusader Shares owned by TOH in favor of the Agent, as Mortgagee, as such
equitable mortgage may be amended, supplemented or modified from time to time.
"U.S. Trust Custodial Account" means, collectively, the custody
accounts maintained by the Borrower with United States Trust Company of New
York pursuant to the U.S. Trust Custody Agreement, currently account nos.
77285700, 89963000, 89963100 and 89963700.
"U.S. Trust Custodial Account Statement" means a statement to be
delivered by or on behalf of the Borrower on or before each of the third and
the 18th Business Day of each month during the term hereof, which shall
reflect the Market Value of the Marketable Securities on deposit in the U.S.
Trust Custodial Account and upon which the Agent will determine the current
Borrowing Base. Such statement to be delivered on or before the third
Business Day each month shall be prepared by United States Trust Company of
New York, and such statement to be delivered on or before the 18th Business
Day of each month shall be prepared by one or more "Investment Managers", as
such term is defined in the U.S. Trust Custody Agreement.
"U.S. Trust Custody Agreement" means the Custody Agreement dated
June 7, 1994 between the Borrower and United States Trust Company of New York,
as such agreement may be amended, supplemented or modified from time to time.
"U.S. Trust Indenture" means the Indenture dated as of December 15,
1993 between the Borrower, as issuer, and United States Trust Company of New
York, as trustee, pursuant to which the Borrower issued $170,000,000 in
aggregate principal amount of its 9-3/4% Senior Subordinated Discount Notes
due 2000, as amended and supplemented by a First Supplemental Indenture dated
as of December 15, 1993.
"Voting Stock" means, with reference to any Person, Stock of any
class or classes if the holders of such Stock are ordinarily, in the absence
of contingencies, entitled to vote for the election of the directors (or
Persons performing similar functions) of such Person, even though the right so
to vote has been suspended by the happening of such a contingency.
1.2. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding" and the word "through" means "to and
including".
1.3. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all accounting
determinations required to be made pursuant hereto shall, unless expressly
otherwise provided herein, be made in conformity with GAAP.
<PAGE>
1.4. Certain Terms (a) The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, and not to any particular Article, Section, subsection or clause in
this Agreement. References herein to an Exhibit, Schedule, Article, Section,
subsection or clause refer to the appropriate Exhibit or Schedule to, or
Article, Section, subsection or clause in this Agreement.
(b) The terms "Lender" and "Agent" include their respective
successors and the term "Lender" includes each assignee of such Lender who
becomes a party hereto pursuant to Section 10.7.
(c) The term "to the best of the Borrower's knowledge" means to
the best knowledge of any Responsible Officer of the Borrower after due
inquiry into the matter in issue.
(d) Upon the appointment of any successor Agent pursuant to
Section 9.6, references to Paribas in Section 9.3 and in the definition of
Eurodollar Rate shall be deemed to refer to the successor then acting as the
Agent.
ARTICLE II
AMOUNTS AND TERMS OF THE REVOLVING CREDIT LOANS
2.1. The Revolving Credit Loans. On the terms and subject to
the conditions contained in this Agreement, each Lender severally agrees to
make loans (each a "Revolving Credit Loan") to the Borrower from time to time
on any Business Day during the period from the date hereof until the
Termination Date in an aggregate amount not to exceed at any time outstanding
such Lender's Commitment; provided, however, that at no time shall any Lender
be obligated to make a Revolving Credit Loan in excess of such Lender's Ratable
Portion of the Available Credit. Within the limits of each Lender's
Commitment, amounts prepaid pursuant to Section 2.7(a) may be reborrowed under
this Section 2.1. The Revolving Credit Loans of each Lender shall be
evidenced by the Revolving Credit Note to the order of such Lender.
2.2. [Intentionally Omitted.]
2.3. Making the Revolving Credit Loans. (a) Each Borrowing shall
be made on notice, given by the Borrower to the Agent not later than 12:00 P.M.
(Central Standard time) on the day that is not less than the number of
Business Days prior to the date of such Borrowing specified below opposite the
type of the Revolving Credit Loan identified in such notice:
Type Number of Business Days
Base Rate Loans 1
Eurodollar Rate Loans 3
<PAGE>
Each such notice (a "Notice of Borrowing") shall be in substantially the form
of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii)
the aggregate amount of such proposed Borrowing, (iii) the amount thereof, if
any, requested to be Eurodollar Rate Loans, and (iv) the initial Interest
Period or Periods for any such Eurodollar Rate Loans. The Loans shall be made
as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing
specifies that all or a pro rata portion thereof shall be Eurodollar Rate
Loans; provided, however, that the aggregate of the Eurodollar Rate Loans for
each Interest Period must be in an amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(b) [Intentionally Omitted.]
(c) The Agent shall give to each Lender prompt notice of the
Agent's receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are
properly requested in such Notice of Borrowing, the applicable interest rate
under Section 2.9(b). Each Lender shall, before 10:00 A.M. (Central Standard
time) on the date of the proposed Borrowing, make available for the account of
its Applicable Lending Office to the Agent at its address referred to in
Section 10.2, in immediately available funds, such Lender's Ratable Portion of
such proposed Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower at the Agent's aforesaid
address.
(d) Each Borrowing for Eurodollar Rate Loans shall be in an
aggregate amount of not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(e) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any proposed Borrowing which the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Loans, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified
in such Notice of Borrowing for such proposed Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including, without limitation, loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund any Eurodollar Rate Loan to be made by
such Lender as part of such proposed Borrowing when such Eurodollar Rate Loan,
as a result of such failure, is not made on such date.
(f) Unless the Agent shall have received notice from a Lender
prior to the date of any proposed Borrowing that such Lender will not make
available to the Agent such Lender's Ratable Portion of such Borrowing, the
Agent may assume that such Lender has made such Ratable Portion available to
the Agent on the date of such Borrowing in accordance with this Section 2.3
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such Ratable Portion available to the Agent,
such Lender and the Borrower severally agree to repay to the Agent forthwith
on demand such corresponding amount together with interest thereon, for
<PAGE>
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Agent, at (i) in the case of
the Borrower, the interest rate applicable at the time to the Revolving
Credit Loans comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the Agent such corresponding
amount, such payment shall not relieve such Lender of any obligation it
may have to the Borrower hereunder.
(g) The failure of any Lender to make the Revolving Credit Loan
to be made by it as part of any Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Revolving Credit Loan on the
date of such Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Revolving Credit Loan to be made by such other
Lender on the date of any Borrowing.
2.4. Fees. (a) The Borrower agrees to pay to each
Lender a commitment fee on the average daily unused portion of such Lender's
Ratable Portion of the Borrowing Base from the date hereof until the
Termination Date at the rate of .50% per annum, payable on (i) the last day of
each Fiscal Quarter during the term of such Lender's Commitment, commencing
March 31, 1995, (ii) on the date of any reduction of the Aggregate Commitments
pursuant to Section 2.5 and (iii) on the Termination Date.
(b) The Borrower has entered into certain additional
arrangements with the Agent and agrees to pay to the Agent for the account of
the Agent certain fees, the amount and dates of payment of which and the terms
of which are embodied in separate agreements between the Borrower and the
Agent.
2.5 Reduction and Termination of the Aggregate Commitments.
The Borrower may, upon at least three Business Days' prior notice to the
Agent, terminate in whole or reduce ratably in part the unused portions of the
respective Aggregate Commitments of the Lenders; provided, however, that each
partial reduction shall be in the aggregate amount of not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof.
2.6. Repayment. The Borrower shall repay the entire unpaid
principal amount of the Revolving Credit Loans on the Termination Date.
2.7. Prepayments. (a) The Borrower may, upon at least
three Business Days' prior notice to the Agent, stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding principal
amount of the Revolving Credit Loans in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that any prepayment of any Eurodollar Rate Loan
shall be made on, and only on, the last day of an Interest Period for such
Loan; and, provided, further, that each partial prepayment shall be in an
aggregate principal amount not less than $1,000,000 in the case of Base Rate
Loans and $5,000,000 in the case of Eurodollar Rate Loans, and in either case
<PAGE>
in integral multiples of $1,000,000 in excess thereof. Upon the giving of
such notice of prepayment, the principal amount of the Loans specified to
be prepaid shall become due and payable on the date specified for such
prepayment.
(b) If at any time the sum of the aggregate principal amount of
Revolving Credit Loans and aggregate Letter of Credit Obligations outstanding
at such time exceeds the lower of the Aggregate Commitments or the Borrowing
Base at such time (a "Deficiency"), the Borrower shall forthwith prepay the
Revolving Credit Loans then outstanding in an amount equal to such excess,
together with accrued interest; provided, however, in lieu thereof the
Borrower may, within ten (10) Business Days of delivery of notice to or from
the Agent that a Deficiency exists, provide (i) additional collateral
acceptable to the Agent in its sole discretion to augment the Borrowing Base
in the manner contemplated by the definition thereof in this Agreement,
Marketable Securities being deemed acceptable additional collateral and/or
(ii) cash collateral (which may include Cash Equivalents) to secure Letter of
Credit Obligations, in either or both such cases to the extent required to
cure the Deficiency.
2.8. Conversion/Continuation Option. The Borrower may elect
(i) at any time to convert Base Rate Loans or any portion thereof to
Eurodollar Rate Loans, or (ii) at the end of any Interest Period with respect
thereto, (A) to convert Eurodollar Rate Loans or any portion thereof into Base
Rate Loans, or (B) to continue such Eurodollar Rate Loans or any portion
thereof for an additional Interest Period; provided, however, that the
aggregate of the Eurodollar Rate Loans for each Interest Period therefor must
be in the amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. Each conversion or continuation shall be allocated among the
Revolving Credit Loans of all Lenders in accordance with their Ratable
Portion. Each such election shall be in substantially the form of Exhibit C
hereto (a "Notice of Conversion or Continuation") and shall be made by giving
the Agent, in the case of (i) or (ii)(B) above, three Business Days' prior
written notice thereof and in the case of (ii)(A) above, one Business Day's
prior notice thereof, specifying (a) the amount and type of conversion or
continuation, (b) in the case of a conversion to or a continuation of
Eurodollar Rate Loans, the Interest Period therefor, and (c) in the case of a
conversion, the date of conversion (which date shall be a Business Day and, if
a conversion from Eurodollar Rate Loans, shall also be the last day of the
Interest Period therefor). The Agent shall promptly notify each Lender of its
receipt of a Notice of Conversion or Continuation and of the contents thereof.
Notwithstanding the foregoing, no conversion in whole or in part of Base Rate
Loans to Eurodollar Rate Loans, and no continuation in whole or in part of
Eurodollar Rate Loans upon the expiration of any Interest Period therefor,
shall be permitted at any time at which a Default or an Event of Default shall
have occurred and be continuing. If, within the time period required under
the terms of this Section 2.8, the Agent does not receive a Notice of
Conversion or Continuation from the Borrower containing a permitted election
to continue any Eurodollar Rate Loans for an additional Interest Period then,
upon the expiration of the Interest Period therefor, such Loans will be
automatically converted to Base Rate Loans. Each Notice of Conversion or
Continuation shall be irrevocable.
<PAGE>
2.9. Interest. The Borrower shall pay interest on the unpaid
principal amount of each Revolving Credit Loan from the date thereof until the
principal amount thereof shall be paid in full, at the following rates per
annum:
(a) For Base Rate Loans, at a rate per annum equal at all times
to the Base Rate in effect from time to time, payable monthly on the last
Business Day of each month, on the Termination Date and on the date any Base
Rate Loan is converted or paid in full; provided, however, that during the
continuance of an Event of Default, all Base Rate Loans shall bear interest,
payable on demand, at a rate per annum equal at all times to 2% per annum
above the Base Rate in effect from time to time.
(b) For Eurodollar Rate Loans, at a rate per annum equal at all
times during the applicable Interest Period for each Eurodollar Rate Loan to
the sum of the Eurodollar Rate for such Interest Period plus the Applicable
Eurodollar Rate Margin in effect on the first day of such Interest Period,
payable on the last day of such Interest Period, on the Termination Date and,
if such Interest Period has a duration of more than three months, on each day
during such Interest Period which occurs every three months from the first day
of such Interest Period; provided, however, that during the continuance of an
Event of Default, all Eurodollar Rate Loans shall bear interest, payable on
demand, at a rate per annum equal at all times to 2% above the Eurodollar Rate
in effect until the maturity of such Loans or the end of such Interest Period,
whichever occurs first, and thereafter at the greater of (x) 2% per annum
above the Base Rate in effect from time to time and (y) 2% per annum above the
rate per annum required to be paid on such Loans immediately prior to the date
on which such Event of Default occurred.
2.10. Interest Rate Determination and Protection. (a) The
Eurodollar Rate for each Interest Period for Eurodollar Rate Loans shall be
determined by the Agent two Business Days before the first day of such
Interest Period.
(b) The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.9(b).
(c) If, with respect to Eurodollar Rate Loans, the Majority
Lenders notify the Agent that the Eurodollar Rate for any Interest Period
therefor will not adequately reflect the cost to such Majority Lenders of
making such Loans or funding or maintaining their respective Eurodollar Rate
Loans for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Loan will automatically, on the
last day of the then existing Interest Period therefor, convert into a Base
Rate Loan; and
<PAGE>
(ii) the obligations of the Lenders to make Eurodollar Rate
Loans or to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended until the Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
2.11. Increased Costs. If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation (other
than any change by way of imposition or increase of reserve requirements
included in determining the Eurodollar Rate Reserve Percentage) or (ii)
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining any Eurodollar Rate Loans, then the Borrower shall from
time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate
as to the amount of such increased cost, submitted to the Borrower and the
Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error. If the Borrower so notifies the Agent within five
Business Days after any Lender notifies the Borrower of any increased cost
pursuant to the foregoing provisions of this Section 2.11, the Borrower may
either (A) prepay in full all Eurodollar Rate Loans of such Lender then
outstanding in accordance with Section 2.7(b) and, additionally, reimburse
such Lender for such increased cost in accordance with this Section 2.11 or
(B) convert all Eurodollar Rate Loans of all Lenders then outstanding into
Base Rate Loans in accordance with Section 2.8 and, additionally, reimburse
such Lender for such increased cost in accordance with this Section 2.11;
provided, however, that within such five Business Day period, in lieu of
prepaying the Eurodollar Rate Loans of the affected Lender, the Borrower may
require the affected Lender to assign to one or more other Lenders or Eligible
Assignees willing to accept such an assignment all of the affected Lender's
Commitment, the Revolving Credit Loans owing to it and the Revolving Credit
Note held by it and a commensurate portion of its rights and obligations
hereunder and under the other Loan Documents, any such assignment to be made
otherwise in accordance with Section 10.7.
2.12. Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to make Eurodollar Rate Loans or to continue to fund
or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Agent, (i) the obligation of such
Lender to make or to continue Eurodollar Rate Loans and to convert Base Rate
Loans into Eurodollar Rate Loans shall terminate and (ii) the Borrower shall
forthwith prepay in full all Eurodollar Rate Loans of such Lender then
outstanding, together with interest accrued thereon, unless the Borrower,
within five Business Days of such notice and demand, converts all Eurodollar
Rate Loans of all Lenders then outstanding into Base Rate Loans; provided,
<PAGE>
however, that within such five Business Day period, in lieu of prepaying
the Eurodollar Rate Loans of the affected Lender, the Borrower may
require the affected Lender to assign to one or more other Lenders or
Eligible Assignees willing to accept such an assignment all of the
affected Lender's Commitment, the Revolving Credit Loans owing to it and
the Revolving Credit Note held by it and a commensurate portion of its
rights and obligations hereunder and under the other Loan Documents,
any such assignment to be made otherwise in accordance with Section
10.7.
2.13. Capital Adequacy. If (i) the introduction of or any
change in or in the interpretation of any law or regulation, (ii) compliance
with any law or regulation, or (iii) compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not having
the force of law) affects or would affect the amount of capital required or
expected to be maintained by any Lender or any corporation controlling any
Lender and such Lender reasonably determines that such amount is based upon
the existence of such Lender's Commitments and Revolving Credit Loans and its
other commitments and loans of this type, then, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
Commitments and Revolving Credit Loans; provided, however, that within such
five Business Day period, in lieu of prepaying the Eurodollar Rate Loans of
the affected Lender, the Borrower may require the affected Lender to assign to
one or more other Lenders or Eligible Assignees willing to accept such an
assignment all of the affected Lender's Commitment, the Revolving Credit Loans
owing to it and the Revolving Credit Note held by it and a commensurate portion
of its rights and obligations hereunder and under the other Loan Documents,
any such assignment to be made otherwise in accordance with Section 10.7. A
certificate as to such amounts submitted to the Borrower and the Agent by such
Lender shall be conclusive and binding for all purposes absent manifest error.
2.14. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Revolving Credit Notes not later
than 12:00 P.M. (Central Standard time) on the day when due, in Dollars, to
the Agent at its address referred to in Schedule II in immediately available
funds without set-off or counterclaim. The Agent will promptly thereafter
cause to be distributed immediately available funds relating to the payment of
principal or interest or fees (other than amounts payable pursuant to Section
2.11, 2.12, 2.13 or 2.15) to the Lenders, in accordance with their respective
Ratable Portions, for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement.
Payment received by the Agent after 12:00 P.M. (Central Standard time) shall
be deemed to be received on the next Business Day.
<PAGE>
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under any
Revolving Credit Loan held by such Lender, to charge from time to time against
any or all of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate and of
fees shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of fees shall be made by the Agent on the basis
of a year of 360 days, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest and fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Revolving Credit
Notes shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment of
interest or fee, as the case may be; provided, however, that if such extension
would cause payment of interest on or principal of any Eurodollar Rate Loan to
be made in the next calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due hereunder to the
Lenders that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
(f) If any Lender (a "Non-Funding Lender") has (x) failed to
make a Revolving Credit Loan required to be made by it hereunder, and the
Agent has determined that such Lender is not likely to make such Revolving
Credit Loan or (y) given notice to the Borrower or the Agent that it will not
make, or that it has disaffirmed or repudiated any obligation to make,
Revolving Credit Loans, in each case by reason of the provisions of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989 or
otherwise, (i) any payment made on account of the principal of the Revolving
Credit Loans outstanding shall be made as follows:
(i) in the case of any such payment made on any date when
and to the extent that, in the determination of the Agent, the Borrower would
be able, under the terms and conditions hereof, to reborrow the amount of
such payment under the Revolving Credit Commitments and to satisfy any
<PAGE>
applicable conditions precedent set forth in Section 3.2 to such reborrowing,
such payment shall be made on account of the outstanding Revolving Credit
Loans held by the Lenders other than the Non-Funding Lender pro rata according
to the respective outstanding principal amounts of the Revolving Credit Loans
of such Lenders;
(ii) otherwise, such payment shall be made on account of
the outstanding Revolving Credit Loans held by the Lenders pro rata according
to the respective outstanding principal amounts of such Revolving Credit
Loans; and
(iii) any payment made on account of interest on the
Revolving Credit Loans shall be made pro rata according to the respective
amounts of accrued and unpaid interest due and payable on the Revolving
Credit Loans with respect to which such payment is being made.
2.15. Taxes. Any and all payments by the Borrower under each
Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, taxes measured by its net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender
or the Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes measured by its net income, and
franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
(excluding, in the case of such Lender or the Agent, taxes imposed by reason
of any failure of such Lender or the Agent, if such Lender or the Agent is
entitled at such time to a total or partial exemption from withholding that is
required to be evidenced by a United States Internal Revenue Service Form 1001
or 4224 or any successor or additional form, to deliver to the Agent or the
Borrower, from time to time as required by the Agent or the Borrower, such
Form 1001 or 4224 (as applicable) or any successor or additional form,
completed in a manner reasonably satisfactory to the Agent or the Borrower)
being hereinafter referred to as "Taxes"). If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder to
any Lender or the Agent (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including, without
limitation, deductions applicable to additional sums payable under this
Section 2.15) such Lender or the Agent (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, (iii) the Borrower shall pay the full
amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (iv) the Borrower shall deliver to the
Agent evidence of such payment to the relevant taxation or other authority.
<PAGE>
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies of the United States or any political subdivision
thereof or any applicable foreign jurisdiction which arise from any payment
made under any Loan Document or from the execution, delivery or registration
of, or otherwise with respect to, any Loan Document (collectively, "Other
Taxes").
(c) The Borrower will indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Lender or the Agent (as the case may be) and any
liability (including, without limitation, for penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes, the Borrower will furnish to the Agent, at its address referred
to in Section 10.2, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.15 shall survive the payment in full of the
Obligations.
(f) Prior to the Closing Date in the case of each Lender that is
a signatory hereto, and on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender in the case of each other Lender and from time to
time thereafter if requested by the Borrower or the Agent, each Lender
organized under the laws of a jurisdiction outside the United States that is
entitled to an exemption from United States withholding tax, or that is
subject to such tax at a reduced rate under an applicable tax treaty, shall
provide the Agent and the Borrower with an IRS Form 4224 or Form 1001 or other
applicable form, certificate or document prescribed by the IRS certifying as
to such Lender's entitlement to such exemption or reduced rate with respect to
all payments to be made to such Lender hereunder and under the Revolving
Credit Notes. Unless the Borrower and the Agent have received forms or other
documents satisfactory to them indicating that payments hereunder or under any
Revolving Credit Note or under any Letter of Credit Reimbursement Agreement
are not subject to United States withholding tax or are subject to such tax at
a rate reduced by an applicable tax treaty, the Borrower or the Agent shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Lender organized under the laws of a jurisdiction
outside the United States.
(g) Any Lender claiming any additional amounts payable pursuant
to this Section 2.15 shall use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of
its Applicable Lending Office if the making of such a change would avoid the
<PAGE>
need for, or reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender; provided, however, that if any
Lender makes any claim pursuant to this Section 2.15, the Borrower may require
such Lender to assign to one or more other Lenders or Eligible Assignees
willing to accept such an assignment all of such Lender's Commitment, the
Revolving Credit Loans owing to it and the Revolving Credit Note held by it
and a commensurate portion of its rights and obligations hereunder and under
the other Loan Documents, any such assignment to be made otherwise in
accordance with Section 10.7, but no such assignment shall relieve the Borrower
of its obligations under this Section 2.15 with respect to any Taxes
theretofore paid or then payable by the assigning Lender.
2.16. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Loans made by it
(other than pursuant to Section 2.11, 2.12, 2.13 or 2.15 or 2.17(h)) in excess
of its Ratable Portion of payments on account of the Revolving Credit Loans or
Letter of Credit Reimbursement Obligations obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
their Revolving Credit Loans or Letter of Credit Reimbursement Obligations as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.16 may, to the
fullest extent permitted by law, exercise all its rights of payment
(including, without limitation, the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
2.17. Letter of Credit Facility. (a) On the terms and
subject to the conditions contained in this Agreement, the Agent agrees to
issue one or more Letters of Credit at the request and for the account of the
Borrower from time to time during the period commencing on the date hereof and
ending thirty (30) days prior to the Final Maturity Date; provided, however,
that the Agent shall not be under any obligation to issue any Letter of Credit
if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or restrain the
Agent from issuing such Letter of Credit or any Requirement of Law applicable
to the Agent or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the Agent shall
<PAGE>
prohibit, or request that the Agent refrain from, the issuance of Letters
of Credit generally or such Letter of Credit in particular or shall impose
upon the Agent with respect to such Letter of Credit any restriction or
reserve or capital requirement (for which the Agent is not otherwise
compensated) not in effect on the Closing Date, or any unreimbursed
loss, cost or expense which was not applicable, in effect or known to the
Agent as of the Closing Date and which the Agent in good faith deems material
to it; or
(ii) the Agent shall have received written notice from any
Lender or the Borrower, on or prior to the Business Day prior to the
requested date of issuance of such Letter of Credit, that one or more of the
applicable conditions contained in Article III is not then satisfied.
None of the Lenders (other than the Agent) shall have any obligation to issue
any Letters of Credit.
(b) In no event shall:
(i) the Letter of Credit Obligations at any time exceed the
lower of the Borrowing Base or the Aggregate Commitments of the Lenders less
the outstanding principal amount of all Revolving Credit Loans;
(ii) the expiration date of any Letter of Credit be more
than thirteen (13) months after the date of issuance thereof, nor shall the
expiration date of any Letter of Credit fall after the Final Maturity Date;
or
(iii) the Agent issue any Letter of Credit for the purpose
of supporting the issuance of any letter of credit by any other Person;
provided, however, Letters of Credit may be requested and (subject to the
terms of this Agreement) shall be issued for the purpose of supporting the
issuance of a performance or payment and performance guaranty by a Person
other than the Borrower or a Subsidiary of the Borrower.
(c) In connection with the issuance of each Letter of Credit and
the acceptance of the Existing Letter of Credit as a Letter of Credit
hereunder, and as a condition of such issuance and acceptance and of the
participation of each Lender (other than Paribas) in the Letter of Credit
Obligations arising with respect thereto, the Borrower shall be deemed,
without further act or evidence, to have delivered to the Agent a letter of
credit reimbursement agreement, in form of that attached hereto as Exhibit E
(a "Letter of Credit Reimbursement Agreement"), signed by the Borrower, and
such other documents or items as may be required pursuant to the terms
thereof. In the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreement and this Agreement, the terms of this Agreement
shall govern.
<PAGE>
(d) The Borrower shall give the Agent at least three (3)
Business Days' prior written or telex notice, or telephonic notice confirmed
promptly thereafter in writing (a "Letter of Credit Request"), in
substantially the form of Exhibit D, of any requested issuance of a Letter of
Credit; such notice shall be irrevocable and shall specify the stated amount
of the Letter of Credit requested, the effective date (which day shall be a
Business Day) of issuance of such requested Letter of Credit, the date on
which such Letter of Credit is to expire (which date shall be a Business Day
and shall in no event be later than the Final Maturity Date), and the Person
for whose benefit the requested Letter of Credit is to be issued. Such
notice, to be effective, must be received by the Agent not later than 12:00
P.M. (Central Standard time) on the last Business Day on which notice can be
given under the immediately preceding sentence.
(e) Subject to the terms and conditions of this Section 2.17 and
provided that the applicable conditions set forth in Article III have been
satisfied, the Agent shall, on the requested date, issue a Letter of Credit on
behalf of the Borrower in accordance with the Agent's usual and customary
business practices. The Agent shall be authorized to issue Letters of Credit
in an aggregate stated amount up to but not exceeding the Available Credit.
(f) Immediately upon the issuance by the Agent of each Letter of
Credit in accordance with the terms and conditions of this Agreement, the
Agent shall be deemed to have sold and transferred to each Lender (other than
Paribas), and each Lender (other than Paribas) shall be deemed irrevocably and
unconditionally to have purchased and received from the Agent without recourse
or warranty, an undivided interest and participation, to the extent of such
Lender's Ratable Portion, in such Letter of Credit and the obligations of the
Borrower with respect thereto (including, without limitation, all Letter of
Credit Reimbursement Obligations with respect thereto) and any security
therefor and guaranty pertaining thereto.
(g) In determining whether to pay under any Letter of Credit,
the Agent shall have no obligation relative to the Lenders other than to
confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by the Agent under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not put the Agent under any resulting liability to any
Lender.
(h) In the event that the Agent makes any payment under any
Letter of Credit and the Borrower shall not have repaid such amount to the
Agent pursuant to Section 2.17(l), the Agent shall promptly notify each Lender
of such failure, and each Lender (other than Paribas) shall promptly and
unconditionally pay to the Agent the amount of such Lender's Ratable Portion
of such payment in Dollars and in same day funds. If the Agent so notifies
such Lender prior to 10:00 A.M. (Central Standard time) on any Business Day,
such Lender shall make available to the Agent for the account of the Agent its
Ratable Portion of the amount of such payment on such Business Day in same day
funds. If and to the extent such Lender shall not have so made such
<PAGE>
Lender's Ratable Portion of the amount of such payment available to the
Agent, such Lender agrees to repay to the Agent for the account of the Agent
forthwith on demand such amount together with interest thereon, for each day
from such date until the date such amount is repaid to the Agent at the
Federal Funds Rate. The failure of any Lender to make available to the Agent
its Ratable Portion of any such payment shall not relieve any other Lender of
its obligation hereunder to make available to the Agent its Ratable Portion of
any payment on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the Agent
such other Lender's Ratable Portion of any such payment.
(i) Whenever the Agent receives a payment of a Letter of Credit
Reimbursement Obligation as to which the Agent has received any payment from a
Lender pursuant to Section 2.11(h), the Agent shall promptly pay to each
Lender which has paid such Lender's Ratable Portion thereof, in Dollars and in
same day funds, an amount equal to such Lender's Ratable Portion thereof.
(j) Upon the request of any Lender, the Agent shall furnish to
such Lender copies of any Letter of Credit Reimbursement Agreement to which
the Agent is a party and such other documentation as may reasonably be
requested by such Lender.
(k) The obligations of the Lenders to make payments to the Agent
with respect to Letters of Credit shall be irrevocable and not subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances (except as
expressly provided in Section 2.17(f) or (g)), including, without limitation,
any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the Collateral Securities;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary named in
a Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, any Lender, or any other
Person, whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including,
without limitation, any underlying transaction between the Borrower and the
beneficiary named in any Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Collateral
Securities; or
<PAGE>
(v) the occurrence of any Default or Event of Default.
(1) The Borrower agrees to pay to the Agent the amount of all
such Letter of Credit Reimbursement Obligations owing to the Agent under any
Letter of Credit immediately when due, irrespective of any claim, set-off,
defense or other right which the Borrower may have at any time against the
Agent or any other Person. The Borrower agrees to reimburse the Agent for all
amounts which the Agent pays under such Letter of Credit no later than the
time specified in such Letter of Credit Reimbursement Agreement. If a Letter
of Credit Reimbursement Obligation shall arise prior to the Termination Date,
the same shall automatically be converted, without necessity for further act
or evidence, into a Base Rate Loan hereunder up to the amount of the Available
Credit, provided, however, that no Default or Event of Default shall have
occurred and be continuing. With respect to any Letter of Credit
Reimbursement Obligation that shall arise (i) after the Termination Date or
(ii) during the continuance of a Default or any Even of Default, or for any
other reason is not automatically converted into a Base Rate Loan hereunder,
such Letter of Credit Reimbursement Obligation shall immediately become
payable on demand with interest computed from the date on which such Letter of
Credit Reimbursement Obligation arose to the date of repayment in full thereof
at the rate of interest applicable to past due Base Rate Loans. If any
payment made by or on behalf of the Borrower and received by the Agent with
respect to any Letter of Credit is rescinded or must otherwise be returned by
the Agent for any reason and if the Agent has paid to any Lender such Lender's
Ratable Portion thereof, each such Lender shall, upon notice by the Agent,
forthwith pay over to the Agent an amount equal to such Lender's Ratable
Portion of the amount which must be so returned by the Agent.
(m) The Borrower agrees to pay the following amounts with
respect to Letters of Credit issued by it:
(i) to the Agent, for the account of the Agent, an issuance
fee, the amount and dates of payment of which and the terms of which are
embodied in separate agreements between the Borrower and the Agent;
(ii) to the Agent, for the ratable benefit of the Lenders,
with respect to each Letter of Credit, a fixed rate commission equal to the
Applicable Eurodollar Rate Margin in effect at the date of issuance of the
maximum amount available from time to time to be drawn under such Letter of
Credit, payable in arrears on the last Business Day of each Fiscal Quarter
and on the termination of such Letter of Credit, and calculated on the basis
of a 360-day year and the actual number of days elapsed; provided, however,
the Agent, for the account of the Agent, will deduct from such commission an
administrative fee equal to .0125%per annum of the maximum amount available
from time to time to be drawn under such Letter of Credit; and
<PAGE>
(iii) to the Agent, for the account of the Agent, with respect to the
issuance, amendment or transfer of each Letter of Credit and each drawing made
thereunder, documentary and processing charges in accordance with the Agent's
standard schedule for such charges in effect at the time of issuance,
amendment, transfer or drawing, as the case may be.
(n) At the Closing Date, the Existing Letter of Credit, without
further act or evidence, shall be deemed to be a Letter of Credit issued and
outstanding hereunder, governed by and subject to the terms hereof and a
Letter of Credit Reimbursement Agreement.
ARTICLE III.
CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
3.1. Conditions Precedent to Initial Revolving Credit Loans and
Letters of Credit. The obligation of each Lender to make its initial
Revolving Credit Loan or of the Agent to issue a Letter of Credit (or to
accept the Existing Letter of Credit as a Letter of Credit issued and
outstanding hereunder) is subject to satisfaction of the conditions precedent
that the Agent shall have received, and there shall have been created in the
Agent's favor, on the Closing Date, the following, each dated or created on
the Closing Date unless otherwise indicated, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender (except in the case of the deposit of the
Crusader Shares for the creation of an Equitable Mortgage referred to in
Section 3.1(e)):
(a) The Revolving Credit Notes to the order of the Lenders,
respectively.
(b) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying (i) the resolutions of its Board of Directors
approving each Loan Document to which it is a party, (ii) all documents
evidencing other necessary corporate action and required governmental and
third party approvals, licenses and consents with respect to each Loan
Document to which it is a party and the transactions contemplated thereby,
(iii) a copy of its and each of the Material Subsidiaries' articles or
certificates of incorporation and By-Laws, or its Memorandum and Articles of
Association (as the case may be) as of the Closing Date, and (iv) the names
and true signatures of each of its officers who has been authorized to execute
and deliver any Loan Document or other document required hereunder to be
executed and delivered by or on behalf of such Person.
(c) A copy of the articles or certificate of incorporation of
the Borrower certified as of a recent date by the Secretary of State of the
state of incorporation of the Borrower and a copy of the Certificate of
Incorporation and Articles of Association of TOH certified as a true copy by a
director or secretary of TOH, together with a certificate of the Texas
Comptroller of Public Accounts attesting to the good
<PAGE>
standing of the Borrower and evidence satisfactory to the Agent that TOH has
good standing under Australian law.
(d) A favorable opinion of Jackson & Walker, L.L.P., U.S.
counsel to the Borrower, in substantially the form of Exhibit H-1, and as to
such other matters as any Lender through the Agent may reasonably request, and
a favorable opinion of Corrs, Chambers & Westgarth, Australian counsel to the
Borrower and TOH in substantially the form of Exhibit H-2.
(e) The deposit of certificates for the Crusader Shares by both
the Borrower and TOH as security for the performance of the Obligations so
that an Equitable Mortgage will be created in respect of those Crusader Shares
upon the making of any Revolving Credit Loan or the issuing of any Letter of
Credit in accordance with the terms of this Agreement, together with:
(i) evidence that all action necessary or, in the opinion
of the Agent, desirable to perfect and protect the Liens created by the
Equitable Mortgages have been taken;
(ii) evidence that any stamp duty which was required to be paid
has either been paid or appropriate arrangements have been made satisfactory
to the Agent concerning payment of any such stamp duty;
(iii) a certificate of Solvency and Execution from at least
one (1) director of TOH and one (1) company secretary of TOH; and
(iv) a letter of undertaking from or on behalf of Crusader
to the effect that Crusader shall not, during the term hereof, change the
Crusader Shares from certificated holdings to uncertificated holdings under
the Clearinghouse Electronic Subregister System as established by the
Australian Stock Exchange, or any other similar register system maintained by
an internationally recognized securities exchange.
(f) The Security Agreement, duly executed by the Borrower,
together with the Letter Agreement with United States Trust Company of New
York referred to in Section 6(a)(i) of the Security Agreement.
(g) Acknowledgment copies of proper Financing Statements (Form
UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of the Agent, desirable to perfect the
Lien created by the Security Agreement; certified copies of Requests for
Information or Copies (Form UCC-11), or equivalent reports, listing the
Financing Statements referred to above and all other effective financing
statements which name the Borrower (under its present name or any previous
name) as debtor and which are filed in the jurisdictions referred to above,
together with copies of such other financing statements (none of which shall
cover the Collateral purported to be covered by the Security Agreement or the
Equitable Mortgages); and evidence of the completion of all recordings and
filings of the Security Agreement and the
<PAGE>
Equitable Mortgage as may be necessary or, in the opinion of the Agent,
desirable to perfect and protect the Liens created thereby.
(h) Such additional documents, information and materials as any
Lender, through the Agent, may reasonably request.
(i) A certificate, signed by a Responsible Officer of the
Borrower, stating that the following statements are true and correct on the
Closing Date:
(i) The statements set forth in Section 3.2 are true after
giving effect to the Revolving Credit Loans being made and/or Letters of
Credit being issued (or deemed issued) on the Closing Date.
(ii) All costs and accrued and unpaid fees and expenses
(including, without limitation, legal fees and expenses) required to be paid
to the Lenders on or before the Closing Date, including, without limitation,
those referred to in Sections 2.4, 2.17 and 10.4, to the extent then due and
payable, have been paid.
(iii) All necessary governmental and third party approvals
required to be obtained by any Loan Party in connection with the transactions
contemplated hereby have been obtained and remain in effect, and all
applicable waiting periods have expired without any action being taken by any
competent authority which restrains, prevents, impedes, delays or imposes
materially adverse conditions upon any of the transactions contemplated
hereby.
(iv) There exists no judgment, order, injunction or other
restraint prohibiting or in the reasonable judgment of any Lender imposing
materially adverse conditions upon any of the transactions contemplated
hereby.
(v) There exists no claim, action, suit, investigation or
proceeding (including, without limitation, shareholder or derivative
litigation) pending or, to the best of Borrower's knowledge, threatened in
any court or before any arbitrator or Governmental Authority which relates to
the Loan Documents or the financing hereunder or which, if adversely
determined, would have a Material Adverse Effect.
(j) Evidence satisfactory to the Agent that all Indebtedness of
the Borrower to NationsBank of Texas, N.A. pursuant to the Credit Agreement
dated December 30, 1994, between the Borrower and NationsBank of Texas, N.A. is
paid in full.
(k) A certificate, signed by a Responsible Officer of the
Borrower, stating that attached thereto are true, correct and complete copies
of the following, as amended, supplemented or modified and in effect at the
Closing Date: (i) the U.S. Trust Custodial Agreement; and (ii) the
Indentures.
<PAGE>
3.2. Conditions Precedent to Each Revolving Credit Loan and
Letter of Credit. The obligation of each Lender to make any Revolving Credit
Loan (including any Revolving Credit Loan being made by such Lender on the
Closing Date), and the obligation of the Agent to issue any Letter of Credit
(including any Letter of Credit deemed to be issued by the Agent on the
Closing Date), shall be subject to the further conditions precedent that:
(a) The following statements shall be true on the date of such
Revolving Credit Loan or Letter of Credit, before and after giving effect
thereto and to the application of the proceeds therefrom (and the acceptance
by the Borrower of the proceeds of such Revolving Credit Loan or of the
issuance of such Letter of Credit shall constitute a representation and
warranty by the Borrower that on the date of such Revolving Credit Loan or
Letter of Credit such statements are true):
(i)The representations and warranties of the Borrower contained
in Article IV and of each Loan Party in the other Loan Documents are correct
on and as of such date as though made on and as of such date; and
(ii) No Default or Event of Default will result from the
Revolving Credit Loans being made and/or the Letters of Credit being issued on
such date.
(b) The making of the Revolving Credit Loans and/or the issuance
of the Letters of Credit on such date does not violate any Requirement of Law
and is not enjoined, temporarily, preliminarily or permanently.
(c) The Agent shall have received such additional documents,
information and materials as any Lender, through the Agent, may reasonably
request.
3.3. Condition Precedent to Each Revolving Credit Loan to Fund
Purchase Money Indebtedness. The obligation of each Lender to make any
Revolving Credit Loan, the proceeds of which will be used by the Borrower to
fund Purchase Money Indebtedness, shall be subject to the further condition
precedent that the Borrower shall have notified the Agent at least ten (10)
Business Days prior to the date proposed for the relevant Borrowing that
proceeds of such Borrowing will be used to fund Purchase Money Indebtedness,
and on or before such date of Borrowing, the Borrower, at its sole cost and
expense, shall have delivered to the Agent a mortgage, deed of trust, security
agreement, pledge or other security instrument, that will create a Purchase
Money Lien.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Agent to enter into this Agreement,
the Borrower represents and warrants to the Lenders and the Agent that:
<PAGE>
4.1. Corporate Existence; Compliance with Law. Each Loan Party
and each of the Material Subsidiaries and, to the best of the Borrower's
knowledge, Crusader (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation; (ii)
is duly qualified as a foreign corporation and in good standing under the laws
of each jurisdiction where such qualification is necessary, except for
failures which in the aggregate have no Material Adverse Effect; (iii) has all
requisite corporate power and authority and the legal right to own, pledge,
mortgage and operate its properties, to lease the property it operates under
lease and to conduct its business as now or currently proposed to be
conducted; (iv) is in compliance with its certificate of incorporation and
by-laws; (v) is in compliance with all other applicable Requirements of Law
except for such non-compliances as in the aggregate have no Material Adverse
Effect; and (vi) has all necessary licenses, permits, consents or approvals
from or by, has made all necessary filings with, and has given all necessary
notices to, each Governmental Authority having jurisdiction, to the extent
required for such ownership, operation and conduct, except for licenses,
permits, consents or approvals which can be obtained by the taking of
ministerial action to secure the grant or transfer thereof or failures which
in the aggregate have no Material Adverse Effect.
4.2. Corporate Power; Authorization; Enforceable Obligations.
(a) The execution, delivery and performance by each Loan Party of the
Loan Documents to which it is a party and the consummation of the transactions
contemplated hereby:
(i) are within such Loan Party's corporate powers;
(ii) have been or, at the time of delivery thereof pursuant
to Article III, will have been duly authorized by all necessary corporate
action, including, without limitation, the consent of stockholders where
required;
(iii) do not and will not (A) contravene any Loan Party's
respective 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 Closing Date, obtained or made
<PAGE>
and copies of which in the case of those involving a Governmental Authority
have been or will be delivered to the Agent pursuant to Section 3.1, and each
of which on the Closing Date will be in full force and effect.
(b) This Agreement has been, and each of the other Loan
Documents will have been upon delivery thereof pursuant to Section 3.1, duly
executed and delivered by each Loan Party thereto. This Agreement is, and the
other Loan Documents will be, when delivered hereunder, the legal, valid and
binding obligation of each Loan Party thereto, 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).
4.3. Taxes. All federal, state, local and foreign tax returns,
reports and statements (collectively, the "Tax Returns") required to be filed
by the Borrower or any of its Tax Affiliates have been filed with the
appropriate governmental agencies in all jurisdictions in which such Tax
Returns are required to be filed, all such Tax Returns are true and correct in
all material respects, and all taxes, charges and other impositions due and
payable have been timely paid prior to the date on which any fine, penalty,
interest, late charge or loss may be added thereto for non-payment thereof,
except where (i) contested in good faith and by appropriate proceedings if
adequate reserves therefor have been established on the books of the Borrower
or such Tax Affiliate in conformity with GAAP or (ii) all such failures to
file or non-payments in the aggregate have no Material Adverse Effect.
4.4. Full Disclosure. No written statement prepared or
furnished by or on behalf of any Loan Party or any of its Affiliates in
connection with any of the Loan Documents or the consummation of the
transactions contemplated hereby, and no financial statement delivered
pursuant hereto or thereto, contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements contained
herein or therein not misleading.
4.5. Borrower Reports. (a) The Borrower has filed all forms,
reports and documents required to be filed with the Securities and Exchange
Commission (collectively, the "Borrower Reports"). Each Borrower Report has
been prepared and filed in accordance with all applicable rules and
regulations of the Securities and Exchange Commission and at the time of its
filing was otherwise in compliance with such rules and regulations in all
material respects. As of their respective dates, the Borrower Reports did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not
misleading.
(b) Each of the consolidated balance sheets included in or
incorporated by reference into the Borrower Reports (including the related
notes and schedules) presents fairly the consolidated financial position of
the Borrower and its
<PAGE>
consolidated Subsidiaries as of its date, and each of the consolidated
statements of operations and cash flows (or changes in financial position
prior to the application of Statement of Financial Accounting Standards No. 95
("SFAS 95")) included in or incorporated by reference into the Borrower
Reports (including any related notes and schedules) presents fairly the
results of operations and cash flows (or changes in financial position prior
to application of SFAS 95), as the case may be, of the Borrower and its
consolidated Subsidiaries for the periods set forth therein (subject, in the
case of unaudited statements, to the omission of certain notes not ordinarily
accompanying such unaudited financial statements, and to normal and recurring
year-end audit adjustments, in each case in accordance with GAAP consistently
applied during the periods involved, except as may be noted therein.
4.6. Financial Matters. (a) The consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as at December 31,
1994, May 31, 1994 and May 31, 1993 and the related consolidated statements of
income, retained earnings and cash flows of the Borrower and its consolidated
Subsidiaries for the fiscal year then ended, certified by Price Waterhouse
LLP, copies of which have been furnished to each Lender, fairly present the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates and the consolidated results of the operations
of the Borrower and its Subsidiaries for the periods ended on such dates, all
in conformity with GAAP.
(b) Since December 31, 1994, there has been no Material Adverse
Change and there have been no events or developments that in the aggregate
have had a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries had at
December 31, 1994 any material: (i) Contractual Obligation or other obligation
or (ii) Contingent Liability or liability for Taxes, long-term leases or
unusual forward or long-term commitments which is not reflected in the balance
sheet at such date referred to in subsection (a) above or in the notes
thereto.
4.7 Litigation. Except as set forth in Schedule 4.7, (i) there
are no pending or, to the best of the Borrower's knowledge, threatened
actions, investigations or proceedings affecting the Borrower or any of its
Subsidiaries before any court, Governmental Authority or arbitrator and (ii)
to the best of the Borrower's knowledge, there are no pending or threatened
actions, investigations or proceedings affecting Crusader before any court,
Governmental Authority or arbitrator, other than those that in the aggregate,
if adversely determined, could not reasonably be expected to have a Material
Adverse Effect. The performance of any action by any Loan Party required or
contemplated by any of the Loan Documents is not restrained or enjoined
(either temporarily, preliminarily or permanently), and no material adverse
condition has been imposed by any Governmental Authority or arbitrator upon
any of the foregoing transactions.
<PAGE>
4.8. Margin Regulations. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Borrowing will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
4.9 Material Subsidiaries. Set forth on Schedule 4.9 hereto is
a listing of the Material Subsidiaries and, as to each such Material
Subsidiary, the jurisdiction of its incorporation, the number of shares of
each class of Stock authorized, the number outstanding on the date hereof and
the percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Borrower. No Stock of any Material Subsidiary is subject
to any outstanding option, warrant, right of conversion or purchase or any
similar right. All of the outstanding capital Stock of each such Material
Subsidiary has been validly issued, is fully paid and non-assessable and is
owned by the Borrower, free and clear of all Liens except Liens in favor of
the Agent. Neither the Borrower nor any such Material Subsidiary is a party
to, or has knowledge of, any agreement restricting the transfer or
hypothecation of any shares of Stock of any such Material Subsidiary, other
than the Loan Documents. Other than Crusader and the Material Subsidiaries,
no Subsidiary of the Borrower is a "Significant Subsidiary", as such term is
defined in Regulation S-X promulgated under the Securities Act of 1933, as
amended.
4.10 ERISA. (a) There are no Multiemployer Plans.
(b) Each Plan and any related trust intended to qualify under
Code Section 401 or 501 has been determined by the IRS to be so qualified and
to the best of Borrower's knowledge nothing has occurred which would cause the
loss of such qualification.
(c) None of the Borrower, any of its Subsidiaries or any ERISA
Affiliate, with respect to any Pension Plan, has failed to make any
contribution or pay any amount due as required by Section 412 of the Code or
Section 302 of ERISA or the terms of any such plan, and all required
contributions and benefits have been paid in accordance with the provisions of
each such plan.
(d) There are no pending or, to the best of the Borrower's
knowledge, threatened claims, actions or proceedings (other than claims for
benefits in the normal course), relating to any Plan other than those that in
the aggregate, if adversely determined, would have no Material Adverse Effect.
(e) No Pension Plan has any unfunded accrued benefit liabilities
in excess of $250,000, as determined by using reasonable actuarial assumptions
utilized by such plan's actuary for funding purposes. Within the last five
(5) years none of the Borrower, any of its Subsidiaries or any ERISA Affiliate
has caused a Pension Plan with any such liabilities to be transferred outside
of its "controlled group" (within the meaning of Section 4001(a)(14) of
ERISA).
<PAGE>
(f) No Plan provides for continuing health, disability, accident
or death benefits or coverage for any participant or his or her beneficiary
after such participant's termination of employment (except as may be required
by Section 4980B of the Code and at the sole expense of the participant or the
beneficiary) which would result in the aggregate under all Plans in a
liability in an amount which would have a Material Adverse Effect.
4.11 Liens. Except for Liens in favor of NationsBank of Texas,
N.A. to be released at the Closing Date, there are no Liens of any nature
whatsoever on any of the Collateral. The Liens granted to the Agent pursuant
to the Collateral Securities are fully perfected first priority Liens in and to
the Collateral.
4.12 Ownership of TOH. The authorized Stock of TOH consists of
200,000 ordinary shares of Common Stock, A $1.00 par value per share, all of
which shares are issued and outstanding. 199,900 shares of the outstanding
capital Stock of TOH is beneficially held by the Borrower, free and clear of
all Liens, and 100 shares of such outstanding capital Stock are owned, but not
held beneficially, by John D. Story, who holds such shares on behalf of the
Borrower. No authorized but unissued and no treasury shares of capital Stock
of TOH are or will be subject to any option, warrant, right of conversion or
purchase of any similar right. There are no agreements or understandings with
respect to the voting, sale or transfer of any shares of Stock of TOH except
as regards its change of registry.
4.13. No Burdensome Restrictions; No Defaults; Contractual
Obligations. (a) Neither the Borrower nor any of its Material
Subsidiaries (i) is a party to any Contractual Obligation the compliance with
which will have a Material Adverse Effect or the performance of which by any
thereof, either unconditionally or upon the happening of an event, will result
in the creation of a Lien (other than a Lien granted by one of the Equitable
Mortgages, or otherwise pursuant to a Loan Document, and, in the case of Oil
and Gas Properties, Permitted Liens) on (A) the Oil and Gas Properties of any
thereof or (B) the capital Stock of any Material Subsidiary held by the
Borrower, or (ii) is subject to any charter or corporate restriction which has
a Material Adverse Effect.
(b) Neither the Borrower, any of its Material Subsidiaries nor,
to the best of the Borrower's knowledge, Crusader is in default under or with
respect to any Contractual Obligation owed by it and, to the best of
Borrower's knowledge, no other party is in default under or with respect to any
Contractual Obligation owed to the Borrower or to any of its Subsidiaries,
other than those defaults which in the aggregate have no Material Adverse
Effect.
(c) No Event of Default or Default has occurred and is
continuing.
(d) To the best of Borrower's knowledge, there is no Requirement
of Law the compliance with which by the Borrower, any of its Subsidiaries or
Crusader would have a Material Adverse Effect.
<PAGE>
(e) Except with respect to Hedging Contracts, no Material
Subsidiary of the Borrower is subject to any Contractual Obligation
restricting or limiting its ability to transfer its assets to the Borrower or
to declare or make any dividend payment or other distribution on account of
any shares of any class of its Stock or its ability to purchase, redeem, or
otherwise acquire for value or make any payment in respect of any such shares
or any shareholder rights.
4.14. [Intentionally Omitted.]
4.15. Government Regulation. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended, or
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act, or any other federal or
state statute or regulation such that its ability to incur Indebtedness is
limited, or its ability to consummate the transactions contemplated hereby or
by any other Loan Document, or the exercise by the Agent or any Lender of
rights and remedies hereunder or thereunder, is impaired. The making of the
Revolving Credit Loans by the Lenders, the application of the proceeds and
repayment thereof by the Borrower and the consummation of the transactions
contemplated by the Loan Documents will not violate any provision of any of
the foregoing or any rule, regulation or order issued by the Securities and
Exchange Commission thereunder.
4.16. Insurance. All policies of insurance set forth in
Schedule 4.16 are in full force and effect.
4.17. Labor Matters. (a) There are no strikes, work
stoppages, slowdowns or lockouts pending or threatened against or involving
the Borrower, any of its Material Subsidiaries or, to the best of the
Borrower's knowledge, Crusader, other than those which in the aggregate have
no Material Adverse Effect.
(b) There are no unfair labor practice charges, arbitrations or
grievances pending against or involving, or, except with respect to potential
wrongful termination or discharge claims, to the best of Borrower's knowledge
threatened against, the Borrower or any of its Subsidiaries, nor are there any
arbitrations or grievances threatened involving the Borrower or any of its
Subsidiaries, other than those which, in the aggregate, if resolved adversely
to the Borrower or such Subsidiary, would have no Material Adverse Effect.
(c) As of the Closing Date, neither the Borrower nor any of its
Subsidiaries are parties to, or have any obligations under, any collective
bargaining agreement in the United States.
(d) There is no organizing activity involving the Borrower or
any of its Subsidiaries pending or, to the best of Borrower's knowledge,
threatened by any labor union or group of employees, other than those which in
the aggregate have no Material Adverse Effect. There are no representation
proceedings pending or, to the best of Borrower's knowledge, threatened with
the National Labor Relations Board, and no labor organization or
<PAGE>
group of employees of the Borrower or any of its Subsidiaries have made a
pending demand for recognition, other than those which in the aggregate have
no Material Adverse Effect.
4.18. Force Majeure. Neither the business nor the properties of
the Borrower or any of its Material Subsidiaries are currently suffering from
the effects of any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by insurance), other
than those which in the aggregate have no Material Adverse Effect.
4.19. Use of Proceeds. The proceeds of the Revolving Credit
Loans are being used by the Borrower solely for general working capital and
corporate purposes, including to fund Purchase Money Indebtedness.
4.20. Environmental Protection. Except as disclosed on Schedule
4.20:
(a) the Oil and Gas Properties and all other real property
leased, owned, or operated by the Borrower or any of its Subsidiaries is free
from contamination by any Hazardous Material which could reasonably be
expected to have a Material Adverse Effect;
(b) the operations of the Borrower and each of its Subsidiaries
are in compliance in all respects with all applicable Environmental Laws,
except where all such noncompliance would have no Material Adverse Effect;
(c) neither the Borrower nor any of its Subsidiaries have
liabilities with respect to Hazardous Materials, and no facts or circumstances
exist which could give rise to liabilities with respect to Hazardous Materials
which could reasonably be expected to have a Material Adverse Effect;
(d) (i) the Borrower and its Subsidiaries have obtained,
currently maintained and have all Environmental Permits necessary for their
operations and are in material compliance with such Environmental Permits,
(ii) there are no Legal Proceedings pending or, to the best of Borrower's and
its Subsidiaries' knowledge, threatened to revoke, or alleging the violation
of, such Environmental Permits, and (iii) neither the Borrower or any of its
Subsidiaries received any notice from any source to the effect that there is
lacking any Environmental Permit required in connection with the current use
or operation of any property leased, owned, or operated by the Borrower or any
of its Subsidiaries, except where all such noncompliance with Environmental
Permits; Legal Proceedings; or the lacking of any Environmental Permit would
not have a Material Adverse Effect;
(e) neither the Borrower's nor any of its Subsidiaries' current
facilities and operations, nor, to the best of Borrower's knowledge or any of
its Subsidiaries' knowledge, any predecessor of the Borrower or any of its
Subsidiaries, nor any of their past facilities and operations, nor any owner
of premises leased or operated by the Borrower and its Subsidiaries, are
subject to any outstanding written Order or Environmental Contract, including
Environmental Liens, with any Governmental Authority or other Person, or to
any federal, state, local,
<PAGE>
foreign or territorial investigation respecting (i) Environmental Laws, (ii)
Remedial Action, (iii) any Environmental Claim, or (iv) the Release or
threatened Release of any Hazardous Material, except where all such Orders and
Environmental Contracts would have no Material Adverse Effect;
(f) neither the Borrower nor any of its Subsidiaries are subject
to any pending Legal Proceeding alleging the violation of any Environmental
Law nor, to the best of Borrower's knowledge and its Subsidiaries' knowledge,
are any such proceedings threatened, except where all such proceedings would
have no Material Adverse Effect;
(g) neither the Borrower nor any of its Subsidiaries nor, to the
best of Borrower's knowledge or any of its Subsidiaries' knowledge, any
predecessor of the Borrower or any of its Subsidiaries, nor any owner of any
Oil and Gas Properties or any other real property leased or operated by the
Borrower or any of its Subsidiaries, has filed any notice under federal, state
or local, territorial or foreign law indicating past or present treatment,
storage, or disposal of or reporting a Release of Hazardous Material into the
environment, in material violation of Environmental Laws, the failure to
comply with which would have a Material Adverse Effect;
(h) none of the operations of the Borrower or any of its
Subsidiaries or, to the best of Borrower's knowledge or any of its
Subsidiaries' knowledge, of any predecessor of the Borrower or any of its
Subsidiaries, or of any owner of any Oil and Gas Properties or other real
property leased or operated by the Borrower or any of its Subsidiaries,
involve or previously involved the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts
260-270 (in effect as of the date of this Agreement) or any state, local,
territorial or foreign equivalent, in material violation of Environmental
Laws, the failure to comply with which would have a Material Adverse Effect;
and
(i) there is not now, nor has there been in the past, on, in or
under any Oil and Gas Properties or other real property leased, owned or
operated by the Borrower or any of its Subsidiaries or any of their
predecessors (i) any underground storage tanks or surface tanks, dikes or
impoundments, (ii) any asbestos-containing materials, (iii) any
polychlorinated biphenyls, or (iv) any radioactive substances, in material
violation of Environmental Laws, the failure to comply with which would have a
Material Adverse Effect.
4.21. Intellectual Property. The Borrower and each of the
Material Subsidiaries own or license or otherwise have the right to use all
material intellectual property rights that are necessary for the operations of
their respective businesses, without infringement upon or conflict with the
rights of any other Person with respect thereto.
4.22. Title to Oil and Gas Properties. Each of the Borrower,
the Material Subsidiaries and, to the best of the Borrower's knowledge,
Crusader has good and defensible title to its respective Oil and Gas
Properties in that such title is (i) evidenced by an instrument or instruments
and is sufficient against competing claims of bona fide purchasers for value
<PAGE>
without notice and (ii) free and clear of all Liens, other than Permitted
Liens and Liens securing Indebtedness that has been paid in full and
discharged.
ARTICLE V.
FINANCIAL COVENANT
As long as any of the Obligations or Commitments remain outstanding,
unless the Majority Lenders otherwise consent in writing, the Borrower agrees
with the Lenders and the Agent that the Borrower shall maintain at the end of
each Fiscal Quarter at all times during the term of this Agreement, commencing
with the Fiscal Quarter ending on March 31, 1995, a ratio of (a) EBITDA to (b)
Interest Expense, determined (i) for the Fiscal Quarter ended March 31, 1995,
on the basis of such Fiscal Quarter; (ii) for the Fiscal Quarter ended June
30, 1995, on the basis of the two Fiscal Quarters ending on such date; (iii)
for the Fiscal Quarter ended September 30, 1995, on the basis of the three
Fiscal Quarters ending on such date; and (iv) for the Fiscal Quarter ended
December 31, 1995 and for each Fiscal Quarter thereafter, on the basis of the
four Fiscal Quarters ending on the date of determination, of not less than
2.5:1.
ARTICLE VI.
AFFIRMATIVE COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, unless the Majority Lenders otherwise consent in writing, the
Borrower agrees with the Lenders and the Agent that:
6.1 Compliance with Laws, Etc. The Borrower shall comply, and
shall cause each of its Subsidiaries to comply, and shall use its best efforts
to cause Crusader to comply, in all material respects with all Requirements of
Law, Contractual Obligations, commitments, instruments, licenses, permits and
franchises, including, without limitation, all Permits; provided, however,
that the Borrower shall not be deemed in default of this Section 6.1 if all
such non-compliances in the aggregate have no Material Adverse Effect.
6.2. Conduct of Business. The Borrower shall (a) conduct, and
shall cause each of its Subsidiaries to conduct, its business in the ordinary
course and consistent with past practice; and (b) perform and observe, and
cause each of its Subsidiaries to perform and observe, all the terms,
covenants and conditions required to be performed and observed by it under its
Contractual Obligations (including, without limitation, to pay all royalties
and other charges payable under any instrument creating any Oil and Gas
Property interest and all debts and other obligations as the same become due),
and do, and cause its Subsidiaries to do, all things necessary to preserve and
to keep
<PAGE>
unimpaired its rights under such Contractual Obligations; provided, however,
that, in the case of each of clauses (a) and (b), the Borrower shall not
deemed in default of this Section 6.2 if all such failures in the aggregate
have no Material Adverse Effect.
6.3. Payment of Taxes, Etc. The Borrower shall pay and
discharge, and shall cause each of its Subsidiaries to pay and discharge,
before the same shall become delinquent, all lawful governmental claims,
taxes, assessments, charges and levies, except where contested in good faith,
by proper proceedings, if adequate reserves therefor have been established on
the books of the Borrower or the appropriate Subsidiary in conformity with
GAAP; provided, however, that the Borrower shall not be deemed in default of
this Section 6.3 if all such non-payments in the aggregate have no Material
Adverse Effect.
6.4. Maintenance of Insurance. The Borrower shall maintain, and
shall cause each of its Material Subsidiaries to maintain, insurance
substantially consistent (in terms of the nature and amount of coverages) with
the coverages provided by the policies set forth in Schedule 4.16 hereto. The
Borrower will furnish to the Agent from time to time such information as may
be requested as to such insurance.
6.5 Preservation of Corporate Existence, Etc. The Borrower
shall preserve and maintain, and shall cause each of the Material Subsidiaries
to preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises, except as permitted under Section 7.5.
6.6. Access. The Borrower shall, at any reasonable time and
from time to time, permit the Agent or any of the Lenders, or any agents or
representatives thereof, to (a) examine and make copies of and abstracts from
the records and books of account of the Borrower and each of its Subsidiaries,
(b) visit the properties of the Borrower and each of its Subsidiaries, (c)
discuss the affairs, finances and accounts of the Borrower and each of its
Subsidiaries with any of their respective officers or directors, and (d)
communicate directly with the Borrower's independent certified public
accountants. The Borrower shall authorize its independent certified public
accountants to disclose to the Agent or any Lender any and all financial
statements and other information of any kind, including, without limitation,
copies of any management letter, or the substance of any oral information that
such accountants may have with respect to the business, financial condition,
results of operations or other affairs of the Borrower or any of its
Subsidiaries.
6.7. Keeping of Books. The Borrower shall keep, and shall cause
each of the Material Subsidiaries to keep, proper books of record and account,
in which full and correct entries shall be made of all material financial
transactions and the assets and business of the Borrower and each such
Material Subsidiary.
6.8. Maintenance of Properties, Etc. The Borrower shall
maintain and preserve, and shall cause each of its Subsidiaries to maintain
and preserve, (i) all of its Oil and Gas Properties and other properties which
are used or useful or necessary in the conduct of its business in good working
order
<PAGE>
and condition, and (ii) all rights, permits, licenses, approvals and
privileges (including, without limitation, all Permits) which are used or
useful or necessary in the conduct of its business; provided, however, that
the Borrower shall not be deemed in default of this Section 6.8 if all such
failures in the aggregate have no Material Adverse Effect.
6.9. Performance and Compliance with Other Covenants. The
Borrower shall perform and comply with, and shall cause each of its
Subsidiaries to perform and comply with, each of the covenants and agreements
under each Contractual Obligation to which it or any of its Subsidiaries is a
party; provided, however, that the Borrower shall not be deemed in default of
this Section 6.9 if all such failures in the aggregate have no Material
Adverse Effect.
6.10. Application of Proceeds. The Borrower shall use the
entire amount of the proceeds of the Revolving Credit Loans as provided in
Section 4.19. The Borrower shall not use any amount of the proceeds of the
Revolving Credit Loans to fund Purchase Money Indebtedness unless and until
the condition precedent provided for in Section 3.3 has been satisfied.
6.11 Financial Statements. The Borrower shall furnish to the
Lenders:
(a) as soon as available and in any event within sixty (60) days
after the end of each of the first three Fiscal Quarters of each Fiscal Year,
a consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as of the end of such quarter and consolidated statements of income, retained
earnings and cash flows of the Borrower and its consolidated Subsidiaries for
the period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, all prepared in conformity with GAAP and
certified by the chief financial officer of the Borrower as fairly presenting
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries at such date and for such period, together with (i)
a certificate of said officer stating that no Default or Event of Default has
occurred and is continuing or, if a Default or an Event of Default has
occurred and is continuing, a statement as to the nature thereof and the
action which the Borrower proposes to take with respect thereto, and (ii) a
schedule in form satisfactory to the Agent of the computations used by the
Borrower in determining compliance with the financial covenant contained
herein;
(b) as soon as available and in any event within 105 days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as of the end of such year and consolidated
statements of income, retained earnings and cash flows of the Borrower and its
consolidated Subsidiaries for such Fiscal Year, all prepared in conformity
with GAAP and certified, in the case of such consolidated financial
statements, in a manner acceptable to the Majority Lenders by Price Waterhouse
LLP or other independent public accountants of recognized national standing,
together with a certificate of such accounting firm in substantially the form
of Exhibit I hereto;
<PAGE>
(c) promptly after the same are received by the Borrower, a copy
of each management letter provided to the Borrower by its independent
certified public accountants which refers in whole or in part to any
inadequacy, defect, problem, qualification or other lack of fully satisfactory
accounting controls utilized by the Borrower or any of its Material
Subsidiaries; and
6.12. Reporting Requirements. The Borrower shall furnish to the
Lenders:
(a) promptly and in any event within thirty (30) days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason
to know that any ERISA Event has occurred, a written statement of the chief
financial officer or other appropriate officer of the Borrower describing such
ERISA Event or waiver request and the action, if any, which the Borrower, its
Subsidiaries and ERISA Affiliates propose to take with respect thereto and
a copy of any notice filed by or with the PBGC or the IRS pertaining thereto;
(b) promptly and in any event within ten (10) days after receipt
thereof, a copy of any adverse notice, determination letter, ruling or opinion
the Borrower, any of its Subsidiaries or any ERISA Affiliate receives from the
PBGC, DOL or IRS with respect to any Plan, other than those which, in the
aggregate, do not have any reasonable likelihood of resulting in a Material
Adverse Effect;
(c) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any domestic or foreign Governmental
Authority or arbitrator, affecting the Borrower or any of its Subsidiaries,
except those which in the aggregate, if adversely determined, could not
reasonably be expected to have a Material Adverse Effect;
(d) promptly and in any event within two (2) Business Days after
a Responsible Officer of the Borrower becomes aware of the existence of (i)
any Default or Event of Default, (ii) any breach or non-performance of, or any
default under, any Contractual Obligation which is material to the business,
operations or financial condition of the Borrower and its Subsidiaries taken
as a whole or (iii) any Material Adverse Change or any event, development or
other circumstance which has any reasonable likelihood of causing or resulting
in a Material Adverse Effect, telephonic or telecopied notice in reasonable
detail specifying the nature of the Default, Event of Default, breach,
non-performance, default, event, development or circumstance, including,
without limitation, the anticipated effect thereof, which notice shall be
promptly confirmed in writing within five (5) days;
(e) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to its security holders generally, and copies
of all reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any national
securities exchange or the National Association of Securities Dealers, Inc.;
<PAGE>
(f) upon the request of any Lender, through the Agent, copies of
all federal, state and local Tax returns and reports filed by the Borrower or
any of the Material Subsidiaries in respect of Taxes measured by income
(excluding sales, use and like Taxes);
(g) promptly and in any event within five (5) days of a
Responsible Officer of the Borrower learning of an Environmental Claim,
Environmental Liability or Remedial Action that could have a Material Adverse
Effect and that was not previously disclosed in writing to the Agent, written
notice to the Agent thereof;
(h) upon written request by any Lender through the Agent, a
report providing an update of the status of any Environmental Claim,
Environmental Liability, Remedial Action or any other issue identified in any
notice or report required pursuant to this Section 6.12; and
(i) such other information respecting the business, properties,
condition, financial or otherwise, or operations of the Borrower or any of the
Material Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
6.13 Employee Plans. For each Plan and any related trust
hereafter adopted or maintained by a Loan Party or any of its ERISA Affiliates
intended to qualify under Code Section 125, 401 or 501, the Borrower shall (i)
seek, and cause such of its ERISA Affiliates to seek, and receive
determination letters from the IRS to the effect that such plan is so
qualified; and (ii) cause such plan to be so qualified.
6.14. Fiscal Year. The Borrower shall maintain as its Fiscal
Year the twelve month period ending on December 31 of each year.
6.15. Environmental Matters. (a) The Borrower shall comply
and shall cause each of its Subsidiaries to comply in all material respects
with all applicable Environmental Laws currently or hereafter in effect,
except where noncompliance would not have a Material Adverse Effect.
(b) If Agent or Lenders at any time have a reasonable basis to
believe that there may be a material violation of any Environmental Law by
Borrower or any of its Subsidiaries related to any Oil and Gas Property or any
other real property owned, leased or operated by Borrower or any of its
Subsidiaries, or Oil and Gas Property or real property adjacent to such Oil
and Gas Property or real property which would have a Material Adverse Effect,
then Borrower agrees, upon request from the Agent, to provide the Agent, at
Borrower's expense, with such reports, certificates, engineering studies or
other written material or data as the Agent or Lenders may reasonably require
so as to reasonably satisfy the Agent and Lenders that Borrower or such
Subsidiary is in material compliance with all applicable Environmental Laws.
Furthermore, Agent shall have the right to inspect during normal business
hours any Oil and Gas Property or any other real property owned, leased or
operated by Borrower or any of its Subsidiaries if at any time Agent or
Lenders have a reasonable basis to believe that there may be such a material
<PAGE>
violation of Environmental Law which would have a Material Adverse Effect.
(c) The Borrower shall, and shall cause each of its Subsidiaries
to, take such Remedial Action or other action as required by Environmental
Laws, as any Governmental Authority requires, except to the extent contested
in good faith and by proper proceedings, or as is appropriate and consistent
with good business practice, or where the failure to take any such action
would not have a Material Adverse Effect.
6.16. Borrowing Base Matters. (a) On or before the third
Business Day of each month, and on or before the 18th Business Day of such
month until the Termination Date, the Borrower shall furnish or cause to be
furnished to the Agent a U.S. Trust Custodial Account Statement as of the
close of business on such date; provided, however that in addition to the
foregoing, not more than once a month (i) the Borrower may submit to the Agent
an interim U.S. Trust Custodial Account Statement with the Borrower's request
that the Agent redetermine the Borrowing Base based thereon and (ii) the Agent
may require the Borrower to submit an interim U.S. Trust Custodial Account
Statement and the Agent may (but shall not be obligated to) redetermine the
Borrowing Base based thereon.
(b) Upon receipt of each U.S. Trust Custodial Account Statement,
the Agent shall notify the Borrower of any redetermination of the Borrowing
Base based thereon. Such Borrowing Base as so determined by the Agent shall
remain in effect until the next redetermination thereof.
(c) Provided that there shall not have occurred and be continuing a
Default or Event of Default, (i) the Borrower may, or cause TOH to, sell,
transfer or otherwise dispose of any Crusader Shares held by either, and (ii)
the Borrower may sell, transfer or otherwise dispose of any Marketable
Securities. Prior to any permitted sale, transfer or other disposition by the
Borrower or TOH of any Crusader Shares, or any conversion by TOH of the
Crusader Notes into Crusader Shares, the Borrower shall provide the Agent with
at least ten (10) Business Days' prior written notice thereof. With respect
to any such sale, transfer or other disposition by the Borrower or TOH of any
Crusader Shares, the Agent, at the sole cost and expense of the Borrower,
shall execute and deliver any instruments required to release from the Lien of
the Equitable Mortgage(s) the Crusader Shares that are the subject of such
sale, transfer or other disposition. With respect to any permitted sale,
transfer or other disposition by the Borrower of any Marketable Security held
in the U.S. Trust Custodial Account, by not later than the close of business
on the third day after the date of consummation of any such sale, transfer or
other disposition of any Marketable Securities, the Borrower shall furnish or
cause to be furnished to the Agent a statement particularizing the terms of
any such sale, transfer or disposition and the Agent shall redetermine the
Borrowing Base based thereon.
(d) The Borrower shall promptly notify the Agent in writing in the
event that at any time the Borrower or any of its Subsidiaries receives or
otherwise gains knowledge that (i) the Borrowing Base is less than 80% of the
Borrowing Base reflected in the most recent Borrowing Base determination made
by the Agent
<PAGE>
or (ii) the Revolving Credit Loans and Letter of Credit Obligations
outstanding at such time exceed the lower of (A) the Aggregate Commitments and
(B) the Borrowing Base at such time as a result of any decrease in the
Borrowing Base, and the amount of such excess.
(e) From time to time upon request of the Agent, the Borrower
shall furnish to the Agent any information which the Agent may reasonably
request regarding the Borrowing Base. The Agent may make test verifications
of the U.S. Trust Custodial Account and the Marketable Securities in any
manner and through any medium that the Agent considers advisable, and the
Borrower shall furnish all such assistance and information as the Agent may
require in connection therewith.
6.17. Designated Senior Indebtedness. Within ten (10) Business
Days of the Closing Date, Borrower will take such steps as may be required to
designate all Indebtedness hereunder as "Designated Senior Indebtedness" under
the Indentures.
ARTICLE VII.
NEGATIVE COVENANTS
As long as any of the Obligations or Commitments remain outstanding,
without the written consent of the Majority Lenders, the Borrower agrees with
the Lenders and the Agent that:
7.1 Liens, Etc. The Borrower shall not create or suffer to
exist, and shall not permit any of its Subsidiaries to create or suffer to
exist, any Lien upon or with respect to any of the Collateral, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income with respect thereto, except for Liens
created pursuant to the Loan Documents. The Borrower shall not create or
suffer to exist, and shall not permit any of its Subsidiaries to create or
suffer to exist, any Lien upon or with respect to the Stock of TOH owned by
the Borrower or the Crusader Notes owned by TOH. The Loan Parties will defend
the Collateral against, and take such other action as is necessary to remove,
any Lien on the Collateral, and will defend the right, title and interest of
the Lender's in and to all of the Loan Parties' respective rights under the
Collateral and in and to the proceeds thereof against the claims and demands
of all Persons whomsoever.
7.2. Indebtedness. The Borrower shall not create, incur or
suffer to exist, or permit any of its Subsidiaries to create, incur or suffer
to exist, any Indebtedness, or incur, assume, endorse, be or become liable
for, or guarantee, directly or indirectly, or permit or suffer to exist, any
Contingent Obligation, except to the extent permitted by Sections 3.6, 3.11 or
3.13 of the U.S. Trust Indenture, the terms of which are incorporated herein
and made a part hereof for all purposes, it being specifically understood and
agreed by the Borrower that the terms of such Sections 3.6, 3.11 and 3.13 as
so incorporated herein will continue to be binding upon, and will continue to
be observed by the Borrower until the Termination Date
<PAGE>
notwithstanding any defeasance of the Notes issued pursuant to the U.S. Trust
Indenture or any defeasance of such Sections 3.6, 3.11 and 3.13, or any other
event resulting in the termination of the Borrower's obligations under such
Sections 3.6, 3.11 and 3.13.
7.3. [Intentionally Omitted.]
7.4. [Intentionally Omitted.]
7.5. [Intentionally Omitted.]
7.6. [Intentionally Omitted.]
7.7. Change in Nature of Business or in Capital Structure.
(a) The Borrower shall not make, and shall not permit any of the Material
Subsidiaries to make, any material change in the nature or conduct of its
business as carried on at the date hereof.
(b) The Borrower shall not make, and shall not permit any of the
Material Subsidiaries to make, any change in its capital structure (including,
without limitation, in the terms of its outstanding Stock) or amend its
certificate of incorporation or by-laws other than for changes or amendments
which in the aggregate have no Material Adverse Effect.
7.8. Modification of Material Agreements. The Borrower shall
not, and shall not permit any of its Subsidiaries to, alter, amend, modify,
rescind, terminate, supplement or waive any of their respective rights under,
or fail to comply in all material respects with, any of its material
Contractual Obligations; provided, however, that, with respect to any of the
above, the Borrower shall not be deemed in default of this Section 7.8 if all
such failures in the aggregate would have no Material Adverse Effect; and
provided, further, that in the event of any breach or event of default by a
Person other than the Borrower or any of its Subsidiaries, the Borrower shall
promptly notify the Agent of any such breach or event of default immediately
following knowledge thereof by a Responsible Officer and take all such action
as may be reasonably necessary in order to endeavor to avoid having such
breach or event of default have a Material Adverse Effect.
7.9. Accounting Changes. The Borrower shall not make, nor
permit any of its Subsidiaries to make, any change in accounting treatment and
reporting practices or tax reporting treatment, except as permitted by GAAP or
law and disclosed to the Lenders and the Agent.
7.10. [Intentionally Omitted.]
7.11. Adverse or Speculative Transactions.
(a) The Borrower shall not enter into or be a party to, or permit any of
its Subsidiaries to enter into or be a party to, any transaction or
Contractual Obligation the performance of
<PAGE>
which in the future would be inconsistent with or has any reasonable
likelihood of resulting in a breach of any covenant contained herein or give
rise to a Default or Event of Default or which contains any restriction or
limitation of the type referred to in Section 4.13(e).
(b) The Borrower shall not and shall not permit any of its
Subsidiaries to engage in any transaction involving commodity options or
futures contracts; provided, however, nothing herein shall prohibit the
Borrower from entering into any commodity price hedging or forward sale
transaction covering up to, but not to exceed, 100% of the actual production
from the Borrower's and its Subsidiaries' Oil and Gas Properties reasonably
projected for the duration of such hedging or forward sale transaction.
7.12. Amendments to U.S. Trust Indenture. The Borrower shall
not enter into any amendment of any of Sections 3.7, 3.8, 3.9, 3.11, 3.12,
3.13 or 9.1 of the U.S. Trust Indenture, or any other amendment to the U.S.
Trust Indenture that would have any effect on such Sections.
7.13. U.S. Trust Custodial Agreement. The Borrower shall not
cancel, terminate or amend the U.S. Trust Custodial Agreement, provided,
however, that account no. 89963000 may be canceled.
7.14. Crusader Shares. The Borrower shall not, and shall not
permit TOH to, cause or permit Crusader to change the Crusader Shares from
certificated holdings to uncertificated holdings under the Clearinghouse
Electronic Subregister System as established by the Australian Stock Exchange,
or any other similar register system maintained by an internationally
recognized securities exchange.
ARTICLE VIII.
EVENTS OF DEFAULT
8.1. Events of Default. Each of the following events shall be
an Event of Default:
(a) The Borrower shall fail to pay any principal (including,
without limitation, mandatory prepayments of principal) of, or interest on,
any Revolving Credit Loan, any fee, any other amount due hereunder or under
the other Loan Documents or other of the Obligations when the same becomes due
and payable, if such failure shall remain unremedied for three (3) days; or
(b) Any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party (or any of its officers)
in connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
<PAGE>
(c) Any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Articles V, VI or VII or in any
Collateral Document, or (ii) any other term, covenant or agreement contained
in this Agreement or in any other Loan Document if such failure under this
clause (ii) shall remain unremedied for five (5) days after the earlier of the
date on which (A) a Responsible Officer of the Borrower becomes aware of such
failure or (B) written notice thereof shall have been given to the Borrower by
the Agent or any Lender, provided, however, unless such failure by its nature
cannot be cured, and provided there has occurred no Material Adverse Effect as
a result thereof, the Borrower may cure the Default created thereby by
delivering to the Agent, within the five-day period otherwise provided
hereinabove for cure, an undertaking to effect a remedy in form and substance
reasonably satisfactory to the Agent; or
(d) Any Loan Party or any of its Material Subsidiaries shall
fail to pay any principal of or premium or interest on any Indebtedness of
such Loan Party or Subsidiary having a principal amount of $5,000,000 or more
(excluding Indebtedness evidenced by the Revolving Credit Notes), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or any other event shall occur
or condition shall exist under any agreement or instrument relating to any
such Indebtedness, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Indebtedness; or any
such Indebtedness shall become or be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), or any Loan Party or any of its Material Subsidiaries shall be
required to repurchase or offer to repurchase such Indebtedness, prior to the
stated maturity thereof; or
(e) Any Loan Party or any of the Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors, or any proceeding shall be instituted
by or against any Loan Party or any of the Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a custodian, receiver, trustee or other similar
official for it or for any substantial part of its property and, in the case
of any such proceedings instituted against any Loan Party or any of the
Material Subsidiaries (but not instituted by it),either such proceedings shall
remain undismissed or unstayed for a period of ninety (90) days or any of the
actions sought in such proceedings shall occur; or any Loan Party or any of
the Material Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$5,000,000 to the extent such excess is not fully covered by insurance shall
be rendered against any Loan Party or any of its Material Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order, or (ii) there shall be any period of ten (10)
<PAGE>
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(g) An ERISA Event shall occur which, in the reasonable
determination of the Majority Lenders, has a reasonable possibility of a
liability, deficiency or waiver request of the Borrower or any ERISA
Affiliate, whether or not assessed, exceeding $250,000; or
(h) The Borrower or any of its Subsidiaries shall have entered
into any consent or settlement decree or agreement or similar arrangement with
an Governmental Authority or any judgment, order, decree or similar action
shall have been entered against the Borrower or any of its Material
Subsidiaries, in either case based on or arising from the violation of or
pursuant to any Environmental Law, or the generation, storage, transportation,
treatment, disposal or Release of any Hazardous Material and, in connection
with any of the foregoing, there is likely to occur a Material Adverse Effect;
or
(i) Any provision of any Collateral Security after delivery
thereof under Section 3.1, as the case may be, shall for any reason cease to
be valid and binding on any Loan Party thereto, or any Loan Party shall so
state in writing, and if such failure to be valid and binding by its nature
may be remedied, such failure shall remain unremedied for a period of ten (10)
days after delivery of notice indicating same by the Agent to the Borrower; or
(j) Any Collateral Security after creation or delivery thereof
pursuant to Section 3.1, as the case may be, shall, for any reason, cease to
create a valid and enforceable Lien on any of the Collateral purported to be
covered thereby, or such Lien shall cease to be a perfected and first priority
Lien, or any Loan Party shall so state in writing, and if such failure to
create a valid, enforceable, perfected first priority Lien by its nature may
be remedied, such failure shall remain unremedied for a period of ten (10)
days after delivery of notice indicating same by the Agent to the Borrower; or
(k) The Borrower shall fail to own (i) beneficially all of the
outstanding Stock of TOH and (ii) of record and beneficially all of the
outstanding Stock of the Material Subsidiaries (other than Crusader), free and
clear of all Liens, or there shall occur any Change of Control; or
(l) There shall occur any default, or event which, but for the
requirement that notice be given or time elapse or both, would be a default,
under either of the Indentures, or for any reason the Obligations shall fail
to constitute "Senior Indebtedness" thereunder, or any Trustee under either of
such Indentures or the holders of a majority of the Indebtedness issued
thereunder shall so state in writing; or
(m) There shall occur a Material Adverse Change or an event
which could have a Material Adverse Effect.
<PAGE>
8.2. Remedies. If there shall occur and be continuing any Event
of Default, the Agent (i) shall at the request, or may with the consent, of
the Majority Lenders by notice to the Borrower, declare the obligation of each
Lender to make Revolving Credit Loans and of the Agent to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Majority Lenders by
notice to the Borrower, declare the Revolving Credit Loans, all interest
thereon and all other amounts and Obligations payable under this Agreement to
be forthwith due and payable, whereupon the Revolving Credit Notes, all such
interest and all such amounts and Obligations shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that upon the occurrence of the Event of Default specified in
subparagraph (e) above, (A) the obligation of each Lender to make Revolving
Credit Loans and of the Agent to issue Letters of Credit shall automatically
be terminated and (B) the Revolving Credit Loans, all such interest and all
such amounts and Obligations shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrower. In addition to the
remedies set forth above, the Agent may exercise any remedies provided for by
the Collateral Securities in accordance with the terms thereof or any other
remedies provided by applicable law.
ARTICLE IX.
THE AGENT
9.1. Authorization and Action. (a) Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto. Without limitation of the
foregoing, each Lender hereby authorizes the Agent to execute and deliver, and
to perform its obligations under, each of the Loan Documents to which the
Agent is a party, and to exercise all rights, powers and remedies that the
Agent may have under such Loan Documents.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including, without limitation,
enforcement or collection of the Revolving Credit Notes), the Agent shall not
be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders and all
holders of Revolving Credit Notes; provided, however, that the Agent shall not
be required to take any action which the Agent in good faith believes exposes
it to personal liability or is contrary to this Agreement or applicable law.
The Agent agrees to give to each Lender prompt notice of each notice given to
it by any Loan Party pursuant to the terms of this Agreement or the other Loan
Documents.
<PAGE>
9.2. Agent's Reliance, Etc. Neither the Agent, nor any of its
Affiliates or any of the respective directors, officers, agents or employees
of the Agent or any such Affiliate shall be liable for any action taken
or omitted to be taken by it, him, her or them under or in connection with this
Agreement or the other Loan Documents, except for its, his, her or their own
gross negligence or wilful misconduct. Without limitation of the generality
of the foregoing, the Agent (i) may treat the payee of any Revolving Credit
Note as the holder thereof until such note has been assigned in accordance
with Section 10.7; (ii) may rely on the Register to the extent set forth in
Section 10.7(c); (iii) may consult with legal counsel (including, without
limitation, counsel to the Borrower or any other Loan Party), independent
public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts; (iv) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents; (v) shall
not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or
any of the other Loan Documents on the part of the Borrower or any other Loan
Party or to inspect the property (including, without limitation, the books and
records) of the Borrower or any other Loan Party; (vi) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any of
the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; and (vii) shall incur no liability under or in
respect of this Agreement or any of the other Loan Documents by acting upon
any notice, consent, certificate or other instrument or writing (which may be
by telegram, cable, telex or facsimile transmission) believed by it to be
genuine and signed or sent by the proper party or parties.
9.3. Paribas and Affiliates. With respect to its Revolving
Credit Commitment, the Revolving Credit Loans made by it and each Revolving
Credit Note issued to it and Letters of Credit issued by it, in its capacity
as the Agent, Paribas shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Agent; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Paribas in its individual capacity. Paribas and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower
or any other Loan Party or any of their respective Subsidiaries and any Person
who may do business with or own securities of the Borrower or any other Loan
Party or any of their respective Subsidiaries, all as if Paribas were not the
Agent and without any duty to account therefor to the Lenders.
9.4. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Article IV and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent
or any
<PAGE>
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement and other Loan Documents.
9.5. Indemnification. The Lenders agree to indemnify the Agent
and its Affiliates, and their respective directors, officers, employees,
agents and advisors (to the extent not reimbursed by the Borrower or other
Loan Parties), ratably according to the respective principal amounts of the
Revolving Credit Notes then held by each of them and Letter of Credit
Obligations (including, without limitation, participations therein) owing to
them (or if no Notes and Letter of Credit Obligations are at the
time outstanding, ratably according to the respective amounts of the Aggregate
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements (including, without limitation, fees and disbursements of legal
counsel) of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against, the Agent in any way relating to or arising out of
this Agreement or the other Loan Documents or any action taken or omitted by
the Agent under this Agreement or the other Loan Documents; provided, however,
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's or such Affiliate's gross
negligence or wilful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including, without limitation, fees and
disbursements of legal counsel) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Loan Documents, to the extent that the Agent is not
reimbursed for such expenses by the Borrower or another Loan Party.
9.6. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor
Agent, which shall be subject to the approval of the Borrower, not to be
unreasonably withheld or delayed. If no successor Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000, and which shall be subject to the approval of
the Borrower, not to be unreasonably withheld or delayed. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement and
the other Loan Documents. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to
<PAGE>
be taken by it while it was Agent under this Agreement and the other Loan
Documents.
ARTICLE X.
MISCELLANEOUS
10.1. Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Borrower therefrom shall
in any event be effective unless the same shall be in writing and signed by
the Majority Lenders, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (i) waive any
of the conditions specified in Article III except as otherwise provided
therein; (ii) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations; (iii) reduce the principal of, or interest on,
the Revolving Credit Loans or any fees or other amounts payable hereunder;
(iv) postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Loans or any fees or other amounts payable hereunder;(v)
change the percentage of the Commitments, the aggregate unpaid principal
amount of the Revolving Credit Loans, or the number of Lenders which shall be
required for the Lenders or any of them to take any action hereunder; (vi)
release any Collateral except as shall otherwise be provided in the Collateral
Securities; or (vii) amend this Section 10.1; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the Agent
in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or the other Loan
Documents.
10.2. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including, without limitation,
telegraphic, telex, telecopy or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered by hand, if to the Borrower, at its
address at Triton Energy Corporation, 6688 North Central Expressway, Suite
1400, Dallas, Texas 75206 (telecopy number: 214/691-0597) (telephone number:
214/691-5200), Attention: Mr. Richard D. Preston, Treasurer; if to any
Lender, at its Domestic Lending Office specified opposite its name on Schedule
II; and if to the Agent, at its address at Banque Paribas Houston Agency, 1200
Smith, Suite 3100, Houston, Texas 77002 (telecopy number: 713/659-3832)
(telephone number: 713/659-4811), Attention: Mr. Mark M. Green, Vice
President; or, as to the Borrower or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as
to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, be effective three days after deposit in
the mails, and when telegraphed, telexed, telecopied, cabled or delivered,
when delivered to the telegraph company, confirmed by telex answerback,
telecopied with confirmation of receipt, delivered to the cable company or
<PAGE>
delivered by hand to the addressee or its agent, respectively, except that
notices and communications to the Agent pursuant to Article II or IX shall not
be effective until received by the Agent.
10.3. No Waiver; Remedies. No failure on the part of any Lender
or the Agent to exercise, and no delay in exercising, any right hereunder or
under any Revolving Credit Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
10.4. Costs; Expenses; Indemnities. (a) The Borrower agrees
to pay on demand (i) all reasonable costs and expenses of the Agent and each
Lender in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, each of the
other Loan Documents and each of the other documents to be delivered hereunder
and thereunder, including, without limitation, the fees and out-of-pocket
expenses of counsel, accountants, appraisers, consultants or industry experts
retained by the Agent or any of the Lenders with respect thereto and, as to
the Agent, with respect to advising it as to its rights and responsibilities
under this Agreement and the other Loan Documents, and (ii) all reasonable
costs and expenses of the Agent or any of the Lenders and each Lender
(including, without limitation, the fees and out-of-pocket expenses of
counsel, accountants, appraisers, consultants or industry experts retained by
the Agent or any Lender) in connection with the restructuring or enforcement
(whether through negotiation, legal proceedings or otherwise) of this
Agreement and the other Loan Documents.
(b) The Borrower agrees to indemnify and hold harmless the Agent
and each Lender and their respective Affiliates, and the directors, officers,
employees, agents, attorneys, consultants and advisors of or to any of
the foregoing (including, without limitation, those retained in connection with
the satisfaction or attempted satisfaction of any of the conditions set forth
in Article III) (each of the foregoing being an "Indemnitee") from and against
any and all claims, damages, liabilities, obligations, losses, penalties,
actions, judgments, suits, costs, disbursements and expenses of any kind or
nature (including, without limitation, fees and disbursements of counsel to
any such Indemnitee and experts, engineers and consultants and the costs of
investigation and feasibility studies) which may be imposed on, incurred by or
asserted against any such Indemnitee in connection with or arising out of any
investigation, litigation or proceeding, whether or not any such Indemnitee is
a party thereto, whether direct, indirect, or consequential and whether based
on any federal, state or local law or other statutory regulation, securities
or commercial law or regulation, or under common law or in equity, or on
contract, tort or otherwise, in any manner relating to or arising out of or
based upon or attributable to this Agreement, any other Loan Document, any
document delivered hereunder or thereunder, any Obligation, or any act, event
or transaction related or attendant to any thereof, including, without
limitation, (i) arising from any misrepresentation or breach of warranty under
Section 4.19 or any Environmental Claim or any Environmental Lien or any
Remedial
<PAGE>
Action arising out of or based upon anything relating to real property owned,
leased or operated by the Borrower or any of its Subsidiaries and the
facilities or operations (collectively, the "Indemnified Matters"); provided,
however, that the Borrower shall not have any obligation under this Section
10.4(b) to an Indemnitee with respect to any Indemnified Matter caused by or
resulting from the gross negligence or willful misconduct of that Indemnitee,
as determined by a court of competent jurisdiction in a final non-appealable
judgment or order.
(c) If any Lender receives any payment of principal of, or is
subject to a conversion of, any Eurodollar Rate Loan other than on the last day
of an Interest Period relating to such Loan, as a result of any payment or
conversion made by the Borrower or acceleration of the maturity of the
Revolving Credit Notes pursuant to Section 8.2 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender all amounts required
to compensate such Lender for any additional losses, costs or expenses which
it may reasonably incur as a result of such payment or conversion, including,
without limitation, any loss (including, without limitation, loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Loan.
(d) The Borrower shall indemnify the Agent and the Lenders for,
and hold the Agent and the Lenders harmless from and against, any and all
claims for brokerage commissions, fees and other compensation made against the
Agent and the Lenders for any broker, finder or consultant with respect to any
agreement, arrangement or understanding made by or on behalf of any Loan Party
or any of its Subsidiaries in connection with the transactions contemplated by
this Agreement.
(e) The Agent and each Lender agree that in the event that any
such investigation, litigation or proceeding set forth in subparagraph (b)
above is asserted or threatened in writing or instituted against it or any
other Indemnitee, or any Remedial Action, is requested of it or any of its
officers, directors, agents and employees, for which any Indemnitee may desire
indemnity or defense hereunder, such Indemnitee shall promptly notify the
Borrower in writing.
(f) The Borrower, at the request of any Indemnitee, shall have
the obligation to defend against such investigation, litigation or proceeding
or requested Remedial Action, and the Borrower, in any event, may participate
in the defense thereof with legal counsel of the Borrower's choice. In the
event that such Indemnitee requests the Borrower to defend against such
investigation, litigation or proceeding or requested Remedial Action, the
Borrower shall promptly do so; provided, however, that any such Indemnitee
shall have the right, at its own expense, to have legal counsel of its choice
participate in such defense. No action taken by legal counsel chosen by such
Indemnitee in defending against any such investigation, litigation or
proceeding or requested Remedial Action, shall vitiate or in any way impair
the Borrower's obligation and duty hereunder to indemnify and hold harmless
such Indemnitee.
<PAGE>
(g) The Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including,
without limitation, pursuant to this Section 10.4) or any other Loan Document
shall (i) survive payment of the Obligations and (ii) inure to the benefit of
any Person who was at any time an Indemnitee under this Agreement or any other
Loan Document.
10.5. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other Indebtedness at any time
owing by such Lender to or for the credit or the account of the Borrower
against any and all of the Obligations now or hereafter existing whether or
not such Lender shall have made any demand under this Agreement or any
Revolving Credit Note or any other Loan Document and although such Obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after
any such set-off and application made by such Lender; provided, however,that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section are in addition
to the other rights and remedies (including, without limitation, other rights
of set-off) which such Lender may have.
10.6 Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and the Agent and when the Agent
shall have been notified by each Lender that such Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
10.7 Assignments and Participations.
(a) Subject to the approval of the Borrower, not to be unreasonably
withheld or delayed, each Lender may sell, transfer, negotiate or assign to
one or more other Lenders or Eligible Assignees all or a portion of its
Commitment, the Revolving Credit Loans owing to it and the Revolving Credit
Note held by it and a commensurate portion of its rights and obligations
hereunder and under the other Loan Documents; provided, however, that (i) the
aggregate amount of the Commitment and Revolving Credit Loans being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event (if less
than the Assignor's entire interest) be less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, except, in either case, with the
consent of the Borrower and the Agent, and (ii) each assignee hereunder shall
also be an Eligible Assignee. The parties to each assignment shall execute
and deliver to the Agent, for its acceptance and recording, an Assignment and
Acceptance, together with the Revolving Credit Note (or an Affidavit of Loss
and Indemnity with respect to such Notes satisfactory to the Agent) subject to
such assignment and a payment to the Agent by such parties, for the account of
the Agent, of an assignment fee of $1,000 in the case of any such assignment
to an existing Lender and $5,000 in the case of any
<PAGE>
other assignment. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(A) the assignee thereunder shall become a party hereto and, to the extent
that rights and obligations under the Loan Documents have been assigned to
such assignee pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and thereunder, and (B) the assignor
thereunder shall, to the extent that rights and obligations under this
Agreement have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (except those which survive the payment in full of the
Obligations) and be released from its obligations under the Loan Documents
(and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under the
Loan Documents, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
of the statements, warranties or representations made in or in connection with
this Agreement or any other Loan Document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Loan Party or the performance or observance
by any Loan Party of any of its obligations under this Agreement or any other
Loan Document or of any other instrument or document furnished pursuant hereto
or thereto; (iii) such assigning Lender confirms that it has delivered to the
assignee and the assignee confirms that it has received a copy of this
Agreement and each of the Loan Documents together with a copy of the most
recent financial statements delivered by the Borrower to the Lenders pursuant
to each of the clauses of Section 6.11 (or if no such statements have been
delivered, the financial statements referred to in Section 4.5 of this
Agreement) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to the Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
<PAGE>
(c) The Agent shall maintain at its address referred to in
Section 10.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses
of the Lenders and the Commitment of and principal amount of the Revolving
Credit Loans owing to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Loan Parties, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower, the Agent or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the Revolving Credit Note subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at
its own expense, shall execute and deliver to the Agent, in exchange for such
surrendered Revolving Credit Note, a new Revolving Credit Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Revolving Credit Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Revolving Credit Note shall be dated the same date as the
surrendered Revolving Credit Note and be in substantially the form of Exhibit
A.
(e) In addition to the other assignment rights provided in this
Section 10.7, each Lender may assign, as collateral or otherwise, any of its
rights under this Agreement (including, without limitation, rights to payments
of principal or interest on the Revolving Credit Loans) to any Federal Reserve
Bank without notice to or consent of the Borrower or the Agent; provided,
however, that no such assignment shall release the assigning Lender from any
of its obligations hereunder. The terms and conditions of any such assignment
and the documentation evidencing such assignment shall be in form and
substance satisfactory to the assigning Lender and the assignee Federal
Reserve Bank.
(f) Each Lender may, with the Borrower's consent, which shall
not be unreasonably withheld, sell participations to one or more banks or
other Persons in or to all or a portion of its rights and obligations under
the Loan Documents (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Loans owing to it and the Revolving Credit
Note held by it). The terms of such participation shall not, in any event,
require the participant's consent to any amendments, waivers or other
modifications of any provision of any Loan Documents, the consent to any
departure by any Loan Party therefrom, or to the exercising or refraining from
exercising any powers or rights which such Lender may have under or in respect
of the Loan Documents (including, without limitation, the right to enforce the
obligations of the Loan Parties), except if any
<PAGE>
such amendment, waiver or other modification or consent would (i) reduce the
amount, or postpone any date fixed for, any amount (whether of principal,
interest or fees) payable to such participant under the Loan Documents, to
which such participant would otherwise be entitled under such participation or
(ii) result in the release of all or substantially all of the Collateral other
than in accordance with the Collateral Securities. In the event of the sale
of any participation by any Lender, (i) such Lender's obligations under the
Loan Documents (including, without limitation, its Commitment) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of such Revolving Credit Note and Obligations for all
purposes of this Agreement, (iv) such Lender shall disclose to the Borrower
the identity of each bank or other entity purchasing a participation within a
reasonable time after the sale and purchase of such participation, and (v)
the Borrower, the Agent 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.
(g) Each assignee or participant shall be entitled to the
benefits of Sections 2.11, 2.13 and 2.15 as if it were a Lender; provided,
however, that anything herein to the contrary notwithstanding, the Borrower
shall not, at any time, be obligated to pay to any assignee or participant of
any interest of any Lender, under Section 2.11, 2.13 or 2.15, any sum in
excess of the sum which the Borrower would have been obligated to pay to such
assignor Lender in respect of such interest had such assignment not been
effected or had such participation not been sold.
10.8. Governing Law; Severability. This Agreement and the
Revolving Credit Notes and the rights and obligations of the parties hereto
and thereto shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
10.9. Submission to Jurisdiction; Service of Process. (a)
Any legal action or proceeding with respect to this Agreement or the Revolving
Credit Notes or any document related thereto 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 Agreement, the
Borrower hereby accepts for itself and in respect of its property, 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.
<PAGE>
(b) The Borrower 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 at its address provided herein.
(c) Nothing contained in this Section 10.9 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 in any other
jurisdiction.
10.10. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
10.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
10.12. Entire Agreement. This Agreement, together with all of
the other Loan Documents and all certificates and documents delivered
hereunder or thereunder and the agreements referred to in Section 2.4(c)
embody the entire agreement of the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof.
10.13. Confidentiality. Each Lender and the Agent agree to keep
information obtained by it pursuant hereto and the other Loan Documents
confidential in accordance with such Lender's or the Agent's, as the case may
be, customary practices and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and not
disclose any of such information other than (i) to such Lender's or the
Agent's, as the case may be, employees, representatives and agents who are or
are expected to be involved in the evaluation of such information in
connection with the transactions contemplated by this Agreement and who are
advised of the confidential nature of such information, (ii) to the extent
such information presently is or hereafter becomes available to such Lender or
the Agent, as the case may be, on a non-confidential basis from a source other
than the Borrower, (iii) to the extent disclosure is required by law,
regulation or judicial order or requested or required by bank regulators or
auditors, or (iv) to permitted assignees or participants or potential
permitted assignees or participants who agree to be bound by the provisions of
this sentence.
10.14. Waiver of Jury Trial. Each of the parties hereto waives
any right it may have to trial by jury in respect of any litigation based on,
or arising out of, under or in connection with this Agreement or any other
Loan Document, or any course of conduct, course of dealing, verbal or written
statement or action of any party hereto.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
TRITON ENERGY CORPORATION
By:/s/ Peter Rugg
Peter Rugg
Senior Vice President and Chief
Financial Officer
BANQUE PARIBAS HOUSTON AGENCY,
as Agent
By:/s/Mark M. Green
Mark M. Green
Vice President
By:/s/Barton Schouest
Barton Schouest
Senior Vice President
Lenders
BANQUE PARIBAS HOUSTON AGENCY
By:/s/Mark M. Green
Mark M. Green
Vice President
By:/s/Barton Schouest
Barton Schouest
Senior Vice President
<PAGE>
[NAME OF LENDER]
By:/s/
Title:
<PAGE>
SCHEDULE I
COMMITMENTS
<TABLE>
<CAPTION>
<S> <C> <C>
Lender Commitment Ratable Portion
BANQUE PARIBAS $40,000,000 100%
HOUSTON AGENCY
</TABLE>
<PAGE>
SCHEDULE II
APPLICABLE LENDING OFFICES AND
ADDRESSES FOR NOTICES
<TABLE>
<CAPTION>
<S> <C> <C>
Domestic Lending
Office and Address Eurodollar
Lender for Notices Lending Office
Banque Paribas Banque Paribas Banque Paribas
Houston Agency The Equitable Tower The Equitable Tower
787 Seventh Avenue 787 Seventh Avenue
New York, NY 10019 New York, NY 10019
</TABLE>
<PAGE>
REVOLVING CREDIT NOTE
U.S. $40,000,000 Dated: March 28, 1995
FOR VALUE RECEIVED, the undersigned, Triton Energy Corporation, a
Texas corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
Banque Paribas Houston Agency (the "Lender") the principal sum of Forty
Million United States Dollars ($40,000,000), or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans (as defined in the Credit
Agreement referred to below) of the Lender to the Borrower, payable at such
times, and in such amounts, as are specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of the Revolving Credit Loans from the date made until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Banque Paribas Houston Agency, as Agent, at The
Equitable Tower, 787 Seventh Avenue, New York, NY 10019, in immediately
available funds. The Revolving Credit Loans made by the Lender to the
Borrower, and all payments made on account of the principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on this
Note.
This Note is one of the Revolving Credit Notes referred to in, and
is entitled to the benefits of, the Credit Agreement, dated as of March 28,
1995 (said Agreement, as it may be amended or otherwise modified from time to
time, being the "Credit Agreement"), among the Borrower, the Lender, the other
financial institutions referred to therein and Banque Paribas Houston Agency,
as agent for the Lender and such other financial institutions, and the other
Loan Documents referred to therein and entered into pursuant thereto. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Loans by the Lender to the Borrower in an aggregate amount not to
exceed at any time outstanding the United States dollar amount first above
mentioned, the indebtedness of the Borrower resulting from such Revolving
Credit Loans being evidenced by this Note, and (ii) contains provisions for
acceleration of the maturity of the unpaid principal amount of this Note upon
the happening of certain stated events and also for prepayments on account of
the principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
This Note is entitled to the benefits of certain guaranties and is
secured as provided in the Loan Documents (as defined in the Credit
Agreement).
Demand, presentment, protest and notice of nonpayment and protest
are hereby waived by the Borrower.
<PAGE>
This Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
TRITON ENERGY CORPORATION
By: /s/ Peter Rugg
Peter Rugg
Senior Vice President and
Chief Financial Officer
EXHIBIT 10.38
SECURITY AGREEMENT
SECURITY AGREEMENT, dated March 28, 1995, made by Triton Energy
Corporation, a Texas corporation (the "Grantor") in favor of Banque Paribas
Houston Agency, as agent for the financial institutions party to the Credit
Agreement referred to below (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Grantor has entered into a Credit Agreement, dated as
of March 28, 1995, with the financial institutions party thereto (the
"Lenders") and the Agent (said Agreement, as it may be amended or otherwise
modified from time to time, being the "Credit Agreement" and capitalized terms
not defined herein but defined therein being used herein as therein defined);
and
WHEREAS, it is a condition precedent to the making of the Revolving
Credit Loans and the issuance of the Letters of Credit that the Grantor shall
have entered into this Agreement;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the Revolving Credit Loans and the Agent to issue
the Letters of Credit that the Grantor hereby agrees with the Agent on behalf
and for the ratable benefit of the Secured Parties as follows:
1. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below (such meanings being equally
applicable to both the singular and plural forms of the terms defined):
"Collateral" has the meaning assigned to such term in Section 2
of this Agreement
"Instrument" means any "instrument", as such term is defined in
Section 9-105(1)(i) of the UCC, now owned or hereafter acquired by the
Grantor.
"Letter Agreement" has the meaning assigned to such term in
Section 6(a)(i) of this Agreement.
"Proceeds" means "proceeds", as such term is defined in Section
9-306(1) of the UCC, and, in any event, shall include, without limitation, (i)
any and all proceeds of any insurance, indemnity, warranty or guaranty payable
to the Grantor from time to time with respect to any of the Collateral, (ii)
any and all payments (in any form whatsoever) made or due and payable to the
Grantor from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by
any Governmental Authority (or any Person acting under color of Governmental
Authority), and (iii) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral.
"Secured Parties" means, collectively, the Agent and the
Lenders.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided, however, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the Agent's and the Secured Parties'
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, the term
"UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions related to
such provisions.
"U.S. Trust Custodial Account" means, collectively, the custody
accounts maintained by the Borrower with United States Trust Company of New
York pursuant to the Custody Agreement dated June 7, 1994 between the Grantor
and United States Trust Company of New York, as such agreement may be amended,
supplemented or modified from time to time, currently account nos. 77285700,
89963000, 89963100 and 89963700.
2. Grant of Security Interest.
(a) As collateral security for the full and prompt payment when
due (whether at stated maturity, by acceleration or otherwise) of, and the
performance of, all the Obligations and to induce the Lenders to make the
Revolving Credit Loans and the Agent to issue the Letters of Credit pursuant
to the Credit Agreement, the Grantor hereby assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Agent, on behalf and for the
ratable benefit of the Secured Parties, and hereby grants to the Agent, on
behalf and for the ratable benefit of the Secured Parties, a security interest
in, all of the Grantor's right, title and interest in, to and under the
following (all of which being hereinafter collectively called the
"Collateral"):
(i) the U.S. Trust Custodial Account, including, without
limitation, all monies, instruments and other property deposited or
accumulated therein or that become withdrawable from or payable out of the
U.S. Trust Custodial Account, including any balances that may remain to the
credit of the U.S. Trust Custodial Account upon the closing thereof, and all
certificates and instruments, if any, representing or evidencing the U.S.
Trust Custodial Account;
(ii) to the extent not otherwise included, all Proceeds
of the foregoing and all accessions to, substitutions and replacements for,
and rents, profits and products of, the foregoing.
(b) In addition, as collateral security for the prompt and
complete payment when due of the Obligations, each Secured Party is hereby
granted a lien and security interest in all property of the Grantor held by
the Agent, including, without limitation, all property of every description,
now or hereafter in the possession or custody of or in transit to such Agent
for any purpose, including safekeeping, collection or pledge, for the account
of the Grantor, or as to which the Grantor may have any right or power.
3. Rights of the Secured Parties; Limitations on Secured
Parties' Obligations.
(a) It is expressly agreed by the Grantor that, anything herein
to the contrary notwithstanding, the Grantor shall remain liable to observe
and perform all the conditions and obligations to be observed and performed by
it with respect to the U.S. Trust Custodial Account and the Grantor shall
perform all such duties and obligations, all in accordance with and pursuant
to the terms and provisions applicable thereto. Neither the Agent nor any
Lender shall have any obligation or liability with respect to the U.S. Trust
Custodial Account by reason of or arising out of this Agreement or the
granting of a security interest in the U.S. Trust Custodial Account to the
Agent on behalf and for the ratable benefit of the Secured Parties or the
receipt by the Agent or any Lender of any payment relating to the U.S. Trust
Custodial Account pursuant hereto, nor shall the Agent or any Lender be
required or obligated in any manner to perform or fulfill any of the
obligations of the Grantor with respect to the U.S. Trust Custodial Account,
or to make any payment, or to make any inquiry as to the nature or the
sufficiency of any payment received by it or the sufficiency of any
performance by any party with respect thereto, or to present or file any
claim, or to take any action to collect or enforce any performance or the
payment of any amounts which may have been assigned to it or to which it may
be entitled at any time or times.
(b) Upon reasonable prior notice to the Grantor (unless a
Default or Event of Default has occurred and is continuing, in which case no
notice is necessary), the Agent shall have the right to make test
verifications of the U.S. Trust Custodial Account in any manner and through
any medium that it considers advisable, and the Grantor agrees to furnish all
such assistance and information as the Agent may require in connection
therewith.
(c) At any time following the occurrence of (i) a Deficiency
where the Borrowing Base is less than 80% of the Borrowing Base reflected in
the most recent Borrowing Base determination made by the Agent or (ii) a
Default, the Agent may deliver to United States Trust Company of New York (the
"Depositary") the Agent Instructions Notice (as such term is defined in the
Letter Agreement); provided, however, unless and until there shall occur an
Event of Default the Agent will forbear from instructing the Depositary to
liquidate any securities or other instruments held in the U.S. Trust Custodial
Account, or to pay to the Agent any funds withdrawable or payable out of such
account.
4. Representations and Warranties. The Grantor hereby
represents and warrants to the Secured Parties as follows:
(a) The Grantor is the sole owner of each item of the Collateral
in which it purports to grant a security interest hereunder, having good title
thereto, free and clear of any and all Liens, except for the security interest
granted pursuant to this Agreement.
(b) No effective security agreement, financing statement,
equivalent security or lien instrument or continuation statement covering all
or any part of the Collateral is on file or of record in any public office,
except such as may have been filed by the Grantor in favor of the Agent
pursuant to this Agreement.
(c) Appropriate financing statements having been filed in the
jurisdictions listed on Schedule I hereto, this Agreement is effective to
create a valid and continuing first priority Lien on and prior to all other
Liens. All action necessary or desirable to protect and perfect such security
interest in the Collateral has been duly taken.
(d) The Grantor's principal place of business and the place
where its records concerning the Collateral are kept are set forth on Schedule
II hereto.
(e) The Grantor has no trade names, fictitious names or other
names except its legal name, and does not operate in any jurisdiction under,
and, except as set forth on Schedule III hereto, has not had or operated in
any jurisdiction within the five-year period preceding the date hereof under,
any trade name, fictitious name or other name other than its legal name.
5. Covenants. The Grantor covenants and agrees with the Secured
Parties that from and after the date of this Agreement and until the
Obligations are fully satisfied:
(a) At any time and from time to time, upon the written request
of the Agent, and at the sole expense of the Grantor, the Grantor will
promptly and duly execute and deliver any and all such further instruments and
documents and take such further action as the Agent may reasonably deem
desirable to obtain the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the UCC with respect to the Liens
and security interests granted hereby and transferring Collateral to the
Agent's possession (if a security interest in such Collateral can be perfected
by possession). The Grantor also hereby authorizes the Agent to file any such
financing or continuation statement without the signature of the Grantor to
the extent permitted by applicable law. If any of the Collateral shall be or
become evidenced by any Instrument, the Grantor agrees to pledge such
Instrument to the Agent and shall duly endorse such Instrument in a manner
satisfactory to the Agent and deliver the same to the Agent.
(b) The Grantor will keep and maintain at its own cost and
expense satisfactory and complete records of the Collateral, including,
without limitation, a record of all payments received and all credits granted
with respect to the Collateral and all other dealings with the Collateral.
The Grantor will mark its books and records pertaining to the Collateral to
evidence this Agreement and the Lien and security interests granted hereby.
For the Agent's and the Lenders' further security, the Grantor agrees that the
Agent and the Lenders shall have a special property interest in all of the
Grantor's books and records pertaining to the Collateral and, upon the
occurrence and during the continuance of any Event of Default, the Grantor
shall deliver and turn over any such books and records to the Agent or to its
representatives at any time on demand of the Agent. Prior to the occurrence
of an Event of Default and upon reasonable notice from the Agent, the Grantor
shall permit any representative of the Agent to inspect such books and records
and will provide photocopies thereof to the Agent.
(c) The Grantor will, if so requested by the Agent, furnish to
the Agent, as often as the Agent reasonably requests, statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Agent may reasonably request, all in
reasonable detail.
(d) The Grantor will advise the Agent promptly, in reasonable
detail, (i) of any material Lien or claim made or asserted against any of the
Collateral, (ii) of any material change in the composition of the Collateral,
and (iii) of the occurrence of any other event which could have a material
adverse effect on the aggregate value of the Collateral or in the security
interests created hereunder.
(e) The Grantor will not change its name, identity or corporate
structure in any manner which might make any financing or continuation
statement filed in connection herewith seriously misleading within the meaning
of Section 9-402(7) of the UCC (or any other then applicable provision of the
UCC) unless the Grantor shall have given the Agent at least 30 days' prior
written notice thereof and shall have taken all action (or made arrangements
to take such action substantially simultaneously with such change if it is
impossible to take such action in advance) necessary or reasonably requested
by the Agent to amend such financing statement or continuation statement so
that it is not seriously misleading. The Grantor will not change its
principal place of business or remove its records, each as set forth on
Schedule II hereto, unless it gives the Agent at least 30 days' prior written
notice thereof and has taken such action as is necessary to cause the security
interest of the Agent in the Collateral to continue to be perfected.
6. The Agent's Appointment as Attorney-in-Fact.
(a) The Grantor hereby irrevocably constitutes and appoints the
Agent and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of the Grantor and in the name of the Grantor or in its
own name, from time to time in the Agent's discretion, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate
action and to execute and deliver any and all documents and instruments which
the Agent may deem necessary or desirable to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby gives
the Agent the power and right, on behalf of the Grantor, without notice to or
assent by the Grantor to do the following:
(i) to exercise exclusive dominion and control over the U.S.
Trust Custodial Account and to exercise all of the Agent's rights as set forth
in that certain Letter Agreement dated as of March 28, 1995, entered into by
and among the Grantor, the Agent and U.S. Trust Company and a form of which is
attached hereto as Annex I (the "Letter Agreement"), including, without
limitation, the Agent's right to provide written instructions to U.S. Trust
Company with respect to the disposition of any and all monies, instruments and
other property deposited or accumulated in the U.S. Trust Custodial Account,
or that become withdrawable from a payable out of the U.S. Trust Custodial
Account, including any balances that may remain to the credit of the U.S.
Trust Custodial Account upon the closing thereof;
(ii) to ask, demand, collect, receive and give acquittances
and receipts for any and all moneys due and to become due under any Collateral
and, in the name of the Grantor or in its own name or otherwise, to take
possession of and endorse and collect any checks, drafts, notes, acceptances
or other Instruments for the payment of moneys due under any Collateral and to
file any claim or to take any other action or proceeding in any court of law
or equity or otherwise deemed appropriate by the Agent for the purpose of
collecting any and all such moneys due under any Collateral whenever payable
and to file any claim or to take any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by the Agent for the purpose
of collecting any and all such moneys due under any Collateral whenever
payable;
(iii) to pay or discharge taxes, Liens, security interests
or other encumbrances levied or placed on or threatened against the Collateral
and to pay all or any part of the premiums therefor and the costs thereof; and
(iv) (A) to direct any party liable for any payment under
or with respect to any of the Collateral to make payment of any and all moneys
due, and to become due thereunder, directly to the Agent or as the Agent shall
direct; (B) to receive payment of and receipt for any and all moneys, claims
and other amounts due, and to become due at any time, in respect of or arising
out of any Collateral; (C) to sign and indorse any invoices, drafts against
debtors, assignments, verifications and notices in connection with the U.S.
Trust Custodial Account and other documents constituting or relating to the
Collateral; (D) to commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any part thereof and to enforce any other right in respect of
any Collateral; (E) to defend any suit, action or proceeding brought against
the Grantor with respect to any Collateral; (F) to settle, compromise or
adjust any suit, action or proceeding described above and, in connection
therewith, to give such discharges or releases as the Agent may deem
appropriate; and (G) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral as fully and
completely as though the Agent were the absolute owner thereof for all
purposes, and to do, at the Agent's option and the Grantor's expense, at any
time, or from time to time, all acts and things which the Agent reasonably
deems necessary to protect, preserve or realize upon the Collateral and the
Secured Parties' Lien therein, in order to effect the intent of this
Agreement, all as fully and effectively as the Grantor might do.
(b) The Agent agrees that, except upon the occurrence and during
the continuance of any Event of Default, it will forbear from exercising the
power of attorney or any rights granted to the Agent pursuant to this Section
6. The Grantor hereby ratifies, to the extent permitted by law, all that any
said attorney shall lawfully do or cause to be done by virtue hereof. The
power of attorney granted pursuant to this Section 6, being coupled with an
interest, shall be irrevocable until the Obligations are indefeasibly paid in
full.
(c) The powers conferred on the Agent hereunder are solely to
protect the Secured Parties' interests in the Collateral and shall not impose
any duty upon it to exercise any such powers. The Agent shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers and neither it nor any of its officers, directors, employees or agents
shall be responsible to the Grantor for any act or failure to act, except for
its own gross negligence or willful misconduct.
(d) The Grantor also authorizes the Agent, at any time and from
time to time upon the occurrence and during the continuance of a Default or
Event of Default, (i) to communicate in its own name with any party with
regard to the assignment of the right, title and interest of the Grantor in
and under the Collateral hereunder and other matters relating thereto and (ii)
to execute, in connection with the sale provided for in Section 8 hereof
and/or the exercise of any of its rights under the Letter Agreement, any
indorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
7. Performance by the Agent of the Grantor's Obligations. If
the Grantor fails to perform or comply with any of its agreements contained
herein and the Agent, as provided for by the terms of this Agreement, shall
itself perform or comply, or otherwise cause performance or compliance, with
such agreement, the reasonable expenses of the Agent incurred in connection
with such performance or compliance, together with interest thereon at the
highest rate then in effect in respect of the Revolving Credit Loans, shall be
payable by the Grantor to the Agent on demand and shall constitute Obligations
secured hereby.
8. Remedies, Rights Upon an Event of Default.
(a) If any Event of Default shall occur and be continuing, the
Agent shall be entitled without the consent or concurrence of, or prior notice
to, the Grantor, to direct United States Trust Company of New York to
liquidate any or all securities or other instruments held in the U.S. Trust
Custodial Account and to direct United States Trust Company of New York to pay
to the Agent for the benefit of the Lenders, the credit balance as shall exist
in the U.S. Trust Custodial Account after such liquidation and after the
payment to United States Trust Company of New York of all the Indebtedness of
the Grantor to United States Trust Company of New York in connection with
transactions in the U.S. Trust Custodial Account.
(b) In addition to the foregoing, if any Default or Event of
Default shall occur and be continuing, the Agent shall, at the request of the
Majority Lenders, or may with the consent of the Majority Lenders, exercise in
addition to all other rights and remedies granted to it in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the UCC.
Without limiting the generality of the foregoing, the Grantor expressly agrees
that in any such event the Agent, without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale) to or upon the Grantor or any
other Person (all and each of which demands, advertisements and/or notices are
hereby expressly waived to the maximum extent permitted by the UCC and other
applicable law), may forthwith collect, recover, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give an option or options to purchase, or sell or otherwise
dispose of and deliver said Collateral (or contract to do so), or any part
thereof, in one or more parcels at public or private sale or sales, at any
exchange or broker's board or any of the Agent's offices or elsewhere at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Agent or any Lender shall have the
right upon any such public sale or sales, and, to the extent permitted by law,
upon any such private sale or sales, to purchase the whole or any part of said
Collateral so sold, free of any right or equity of redemption, which equity of
redemption the Grantor hereby releases. The Agent shall apply the net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale, as provided in Section 8(f) hereof, the Grantor remaining liable for
any deficiency remaining unpaid after such application, and only after so
paying over such net proceeds and after the payment by the Agent of any other
amount required by any provision of law, including Section 9-504(1)(c) of the
UCC, need the Agent account for the surplus, if any, to the Grantor. To the
maximum extent permitted by applicable law, the Grantor waives all claims,
damages, and demands against the Secured Parties arising out of the
repossession, retention or sale of the Collateral. The Grantor agrees that
the Agent need not give more than ten (10) days' notice of the time and place
of any public sale or of the time after which a private sale may take place
and that such notice is reasonable notification of such matters. The Grantor
shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all amounts to which the
Secured Parties are entitled, the Grantor also being liable for the fees and
expenses of any attorneys employed by the Agent and the Lenders to collect
such deficiency.
(c) The Grantor also agrees to pay all costs of the Secured
Parties, including, without limitation, attorneys' fees, incurred in
connection with the enforcement of any of its rights and remedies hereunder.
(d) The Grantor hereby waives presentment, demand, protest or
any notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
(e) Notwithstanding any provisions of this Agreement to the
contrary, if, after giving effect to any sale, transfer, assignment or other
disposition of any or all of the Collateral pursuant hereto and after the
application of the proceeds hereunder to Obligations, any Obligations remain
unpaid or unsatisfied, Grantor shall remain liable for the unpaid and
unsatisfied amount of such Obligations.
(f) The Proceeds of any sale, disposition or other realization
upon all or any part of the Collateral shall be distributed by the Agent in
the following order of priorities:
First, to the payment of the costs and expenses of such sale, including,
without limitation, all expenses of the Agent and its agents including the
fees and expenses of its counsel, and all expenses, liabilities and advances
made or incurred by the Agent and the Lenders in connection therewith or
pursuant to Section 7 hereof;
Next, to the Agent for the ratable account of the Lenders, for the
payment in full of the Obligations; and
Finally, after payment in full of all the Obligations, to the payment of
the Grantor, or its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same as a court of competent jurisdiction may direct.
9. Limitation on the Secured Parties' Duty in Respect of
Collateral. No Secured Party shall have any duty as to any Collateral in its
possession or control or in the possession or control of any agent or nominee
of it or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto, except that each Secured Party
shall use reasonable care with respect to the Collateral in its possession or
under its control. Upon request of the Grantor, the Agent shall account for
any moneys received by it in respect of any foreclosure on or disposition of
the Collateral.
10. Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, telecopy, or
cable communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered by hand, if to the Grantor, addressed to it at the address of the
Grantor specified in the Credit Agreement, and if to any Secured Party,
addressed to it at the address of such Secured Party specified in the Credit
Agreement, or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party complying as to delivery
with the terms of this Section 10. All such notices and other communications
shall, when mailed, telegraphed, telexed, telecopied, cabled or delivered, be
effective when deposited in the mails, delivered to the telegraph company,
confirmed by telex answerback, telecopied with confirmation or receipt,
delivered to the cable company, or delivered by hand to the addressee or its
agent, respectively.
11. Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Grantor therefrom shall in
any event be effective unless the same shall be in writing, approved by the
Majority Lenders (except where under Section 10.1 of the Credit Agreement, the
approval of each Lender is required) and signed by the Agent, and then any
such waiver or consent shall only be effective in the specific instance and
for the specific purpose for which given.
12. No Waiver; Remedies. (a) No failure on the part of
any Secured Party to exercise, and no delay in exercising any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative, may
be exercised singly or concurrently, and are not exclusive of any remedies
provided by law or any of the other Loan Documents.
(b) Failure by any of the Secured Parties at any time or times
hereafter to require strict performance by the Grantor or any other Person of
any of the provisions, warranties, terms or conditions contained in any of the
Loan Documents now or at any time or times hereafter executed by the Grantor
or any such other Person and delivered to any of the Secured Parties shall not
waive, affect or diminish any right of any of the Secured Parties at any time
or times hereafter to demand strict performance thereof, and such right shall
not be deemed to have been modified or waived by any course of conduct or
knowledge of any of the Secured Parties, or any agent, officer or employee of
any Secured Party.
13. Successors and Assigns. This Agreement and all obligations
of the Grantor hereunder shall be binding upon the successors and assigns of
the Grantor, and shall, together with the rights and remedies of the Agent
hereunder, inure to the benefit of the Agent, the Lenders, and their
respective successors and assigns.
14. Governing Law. This Agreement shall be governed by, and be
construed and interpreted in accordance with, the law of the State of New
York. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity and without invalidating the remaining provisions of
this Agreement.
15. Waiver of Jury Trial. The Grantor waives any right it may
have to trial by jury in any action or proceeding to enforce or defend any
rights or remedies hereunder, under the Credit Agreement or under any of the
other Loan Documents or any other document relating to any of the foregoing.
16. Further Indemnification. The Grantor agrees to pay, and to
save the Agent and each Lender harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all excise, sales
or other similar taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
17. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Agreement.
18. Conflict with Credit Agreement. This Agreement is executed
pursuant to the Credit Agreement, and in the event of any conflict between any
term hereof and any term thereof, the latter shall control.
Incorporation of Letter Agreement. The Letter Agreement is
incorporated herein and made a part hereof for all purposes.
<PAGE>
IN WITNESS WHEREOF, The Grantor has caused this Agreement to be
executed and delivered by its duly authorized officer on the date first above
written.
TRITON ENERGY CORPORATION
By: /s/
Name:
Title:
Accepted and acknowledged by:
BANQUE PARIBAS HOUSTON AGENCY, as Agent
By: /s/
Name:
Title:
By: /s/
Name:
Title:
<PAGE>
Exhibit 15.1
May 10, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Triton Energy Corporation has included our report dated May
2, 1995 (issued pursuant to the provisions of Statement of Auditing Standards
No. 71) in the Registration Statements on Form S-8 (Nos. 2-80978, 33-4042,
33-27203, 33-29498, 33-46968 and 33-51691) and in the Registration Statements
on Form S-3 (Nos. 33-11920, 33-15793, 33-17614, 33-21984, 33-23058, 33-25634,
33-31319, 33-45847, 33-69230, 33-55347 and 33-46292). We are also aware of
our responsibilities under the Securities Act of 1933.
Yours very truly,
PRICE WATERHOUSE LLP
Dallas, Texas
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MARCH 31,
1995 FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> MAR-31-1995
<CASH> 9,113
<SECURITIES> 22,482
<RECEIVABLES> 26,997
<ALLOWANCES> 0
<INVENTORY> 2,458
<CURRENT-ASSETS> 62,550
<PP&E> 928,117
<DEPRECIATION> 499,996
<TOTAL-ASSETS> 642,426
<CURRENT-LIABILITIES> 31,241
<BONDS> 0
<COMMON> 35,578
0
17,976
<OTHER-SE> 181,177
<TOTAL-LIABILITY-AND-EQUITY> 642,426
<SALES> 21,912
<TOTAL-REVENUES> 21,912
<CGS> 10,221
<TOTAL-COSTS> 10,221
<OTHER-EXPENSES> 4,775
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,597
<INCOME-PRETAX> 1,222
<INCOME-TAX> 2,777
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