<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): DECEMBER 1, 1997
CROSS TIMBERS OIL COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 1-10662 75-2347769
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
810 HOUSTON STREET, SUITE 2000, FORT WORTH, TEXAS 76102
(Address of principal executive offices) (Zip Code)
(817) 870-2800
(Registrant's telephone number, including area code)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On December 1, 1997, Cross Timbers Oil Company, a Delaware corporation ("the
Company"), acquired interests in certain producing oil and gas properties in the
San Juan Basin of New Mexico from a subsidiary of Amoco Corporation ("Amoco").
The interests acquired consist of 130,000 net acres in San Juan and Rio Arriba
counties of New Mexico. The Company's internal engineers estimate proved
reserves attributable to the acquisition to be 205 billion cubic feet of natural
gas, 13 million barrels of natural gas liquids and 1.2 million barrels of oil,
or a total of 48.5 million barrels of oil equivalent. Net daily production
averages 39 million cubic feet of gas, 2,500 barrels of natural gas liquids and
230 barrels of oil from more than 1,660 gross (720 net) wells.
The purchase was made pursuant to a Purchase and Sale Agreement dated September
29, 1997, with a stated purchase price of $252 million and warrants to purchase
625,000 shares of the Company's common stock at price of $22.97 per share for a
period of five years. After adjustments for other acquisition costs, estimated
cash flows through date of closing and preferential purchase rights exercised by
third parties, the properties were purchased for approximately $195 million,
including approximately $5.7 million value for the warrants. Amoco elected to
accept certain producing properties owned by the Company valued at $15.7 million
in lieu of cash, reducing cash consideration to $173.6 million, which was funded
through borrowings under the Company's Revolving Credit Agreement with
commercial banks dated November 21, 1997. Additional purchase price revisions
may result from customary post-closing adjustments.
ITEM 5. OTHER EVENTS.
Conoco, Inc. ("Conoco") had previously filed a lawsuit against Amoco and the
Company, seeking a judgment that Conoco was entitled to operate certain wells in
which Conoco was a working interest owner and that were included in the Purchase
and Sale Agreement dated September 29, 1997 to be sold to the Company (see Item
2 above). As a result of exercising its preferential purchase rights for these
properties, Conoco will own the operating interest in the subject wells and,
accordingly, on December 2, 1997, Conoco filed a notice of non-suit as to the
Company, dismissing the Company from the lawsuit.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired.
Statements of revenues and direct operating expenses for the properties
acquired from Amoco for the year ended December 31, 1996 (audited) and for the
nine months ended September 30, 1997 (unaudited) are impracticable to file as of
the date of this report. Such financial statements will be filed by amendment
as soon as practicable, but no later than February 16, 1998.
(b) Pro forma financial information.
A pro forma consolidated balance sheet for the Company at December 31, 1996
and pro forma consolidated statements of operations for the Company for the year
ended December 31, 1996 and the nine months ended September 30, 1997, which
reflect the impact of the properties acquired from Amoco, are impracticable to
file as of the date of this report. Such pro forma financial statements will be
filed by amendment as soon as practicable, but no later than February 16, 1998.
-2-
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(c) Exhibits.
Exhibit Number Page
and Description Number
--------------- ------
(2) Plan of acquisition, reorganization, arrangement,
liquidation or succession
2.1 Purchase and Sale Agreement by and between Amoco
Production Company and the Company, dated
September 29, 1997
(99) Additional Exhibits
99.1 Revolving Credit Agreement, dated November 21, 1997,
among the Company and certain commercial banks named
therein
-3-
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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 hereunto duly authorized.
CROSS TIMBERS OIL COMPANY
Date: December 16, 1997 By: LOUIS G. BALDWIN
----------------------------------
Louis G. Baldwin
Senior Vice President and
Chief Financial Officer
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EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
AMOCO PRODUCTION COMPANY, SELLER
AND
CROSS TIMBERS OIL COMPANY, BUYER
DATED SEPTEMBER 29, 1997
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INDEX
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<TABLE>
<S> <C>
Article 1. DEFINITIONS.................................................. 1
Article 2. SALE AND PURCHASE
2.1 Sale and Purchase............................................ 8
Article 3. PURCHASE PRICE, DEPOSIT AND PREFERENTIAL RIGHTS
3.1 Purchase Price............................................... 9
3.2 Deposit...................................................... 9
3.3 Preferential Rights To Purchase.............................. 9
Article 4. TITLE REVIEW
4.1 Review of Title Records...................................... 10
4.2 Alleged Title Defects........................................ 10
4.3 Waiver....................................................... 11
Article 5. INSPECTION OF PREMISES
5.1 Inspection of Premises....................................... 11
5.2 Alleged Adverse Conditions................................... 11
5.3 Waiver....................................................... 12
Article 6. ACCOUNTING
6.1 Revenues, Expenses and Capital Expenditures.................. 12
6.2 Taxes........................................................ 13
6.3 Obligations and Credits...................................... 13
6.4 Miscellaneous Accounting..................................... 14
6.5 Final Accounting Settlement.................................. 14
6.6 Post-Final Accounting Settlement............................. 15
6.7 Suspense Funds............................................... 15
Article 7. LOSS, CASUALTY AND CONDEMNATION
7.1 Notice of Loss............................................... 15
7.2 Casualty and Condemnation.................................... 15
Article 8. ALLOCATION OF RESPONSIBILITIES AND INDEMNITIES
8.1 Opportunity for Review....................................... 16
8.2 Seller's Non-Environmental Indemnity Obligation.............. 16
8.3 Seller's Environmental Indemnity Obligation.................. 16
8.4 Buyer's Non-Environmental Indemnity Obligation............... 17
8.5 Buyer's Environmental Indemnity Obligation................... 17
8.6 Asbestos, NORM and/or Mercury................................ 18
8.7 Buyer's Assumption of Obligations............................ 19
8.8 Process Safety Management.................................... 19
8.9 Notice of Claims............................................. 20
8.10 Defense of Claims............................................ 20
</TABLE>
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<TABLE>
<S> <C>
8.11 Waiver of Certain Damages.................................... 20
8.12 Limitation on Indemnities.................................... 21
8.13 Litigation Obligations....................................... 21
Article 9. SPECIAL WARRANTY AND DISCLAIMERS
9.1 Special Warranty of Title.................................... 21
9.2 Disclaimer - Representations and Warranties.................. 21
9.3 Disclaimer - Statements and Information...................... 22
Article 10. SELLER'S REPRESENTATIONS AND WARRANTIES
10.1 Organization and Good Standing............................... 22
10.2 Corporate Authority; Authorization of Agreement.............. 22
10.3 No Violations................................................ 23
10.4 Absence of Certain Changes................................... 23
10.5 Operating Costs.............................................. 24
10.6 Litigation................................................... 24
10.7 Bankruptcy................................................... 24
Article 11. BUYER'S REPRESENTATIONS AND WARRANTIES
11.1 Organization and Good Standing............................... 24
11.2 Corporate Authority; Authorization of Agreement.............. 24
11.3 No Violations................................................ 25
11.4 SEC Disclosure............................................... 25
11.5 Independent Evaluation....................................... 25
11.6 Buyer's Reliance............................................. 25
Article 12. ADDITIONAL COVENANTS AND CONSIDERATIONS
12.1 Subsequent Operations........................................ 25
12.2 Financial Assurances......................................... 26
12.3 Transition Agreement......................................... 26
12.4 License Agreement(s)......................................... 26
12.5 Sublease Agreement........................................... 27
12.6 NGL Call..................................................... 27
12.7 Transitional Automation Agreement............................ 27
12.8 Partnership Agreements and Ridgewood Contracts............... 27
12.9 Stock Warrants............................................... 27
12.10 Cooperation by Seller........................................ 27
Article 13. PERSONNEL MATTERS
13.1 Employee Lists............................................... 28
13.2 Offers of Employment......................................... 28
13.3 Severance.................................................... 28
13.4 Additional Agreements........................................ 28
Article 14. HSR FILINGS
14.1 HSR Filings.................................................. 29
</TABLE>
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<TABLE>
<S> <C>
Article 15. CONDITIONS PRECEDENT TO CLOSING
15.1 Conditions Precedent to Seller's Obligation to Close......... 29
15.2 Conditions Precedent to Buyer's Obligation to Close.......... 29
15.3 Conditions Precedent to Obligation of Each Party
to Close................................................... 30
Article 16. THE Closing
16.1 Closing...................................................... 31
16.2 Obligations of Seller at Closing............................. 31
16.3 Obligations of Buyer at Closing.............................. 32
16.4 Possible Trade of Properties................................. 34
Article 17. TERMINATION
17.1 Grounds for Termination...................................... 34
17.2 Effect of Termination........................................ 35
17.3 Dispute over Right to Terminate.............................. 35
17.4 Return of Documents.......................................... 35
17.5 Confidentiality.............................................. 35
Article 18. ARBITRATION
18.1 Arbitration.................................................. 36
Article 19. MISCELLANEOUS
19.1 Notices...................................................... 36
19.2 Conveyance Costs............................................. 37
19.3 Brokers' Fees................................................ 37
19.4 Records...................................................... 38
19.5 Further Assurances........................................... 38
19.6 Survival of Representations and Warranties................... 39
19.7 Amendments and Severability.................................. 39
19.8 Successors and Assigns....................................... 39
19.9 Headings..................................................... 39
19.10 Governing Law................................................ 39
19.11 No Partnership Created....................................... 39
19.12 Public Announcements......................................... 39
19.13 No Third Party Beneficiaries................................. 40
19.14 Waiver of Consumer Rights.................................... 40
19.15 Not to be Construed Against Drafter.......................... 40
19.16 Tax Deferred Exchange Election............................... 40
19.17 Conspicuousness of Provisions................................ 40
19.18 Execution in Counterparts.................................... 41
19.19 Entire Agreement............................................. 41
</TABLE>
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EXHIBITS
--------
Exhibit "A" - WORKING INTERESTS AND NET REVENUE INTERESTS
ATTACHMENT 1 - Base Property Listing
ATTACHMENT 2 - Split Lease/FLAC Listing
ATTACHMENT 3 - Properties with Payout Balances Listing
EXHIBIT "A-1" PROPERTIES
EXHIBIT "B" - TERMS OF STOCK WARRANT
Exhibit "C" - MATERIAL CONTRACTS
EXHIBIT "D" - GAS IMBALANCES
Exhibit "E" - PARTNERSHIPS
Exhibit "F" - EXCLUDED PROPERTIES
Exhibit "G" - CLAIMS, DISPUTES AND LITIGATION
Exhibit "H" - TRANSITIONAL AUTOMATION AGREEMENT
Exhibit "I" - ASSIGNMENT AND BILL OF SALE
Exhibit "J" - SURFACE DEED
Exhibit "K" - MINERAL DEED
EXHIBIT "L" - CERTIFICATE
Exhibit "M" - LETTERS-IN-LIEU
EXHIBIT "N" - OPINION OF COUNSEL
EXHIBIT "O" - NON-FOREIGN AFFIDAVIT
EXHIBIT "P" - TRANSITION AGREEMENT
EXHIBIT "Q" - LICENSE AGREEMENT
EXHIBIT "R" - SUBLEASE AGREEMENT
iv
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PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is dated September 29,
1997, by and between AMOCO PRODUCTION COMPANY, a Delaware corporation, with an
office at 501 WestLake Park Boulevard, Houston, Texas 77079 (hereinafter
referred to as "Seller") and CROSS TIMBERS OIL COMPANY, a Delaware corporation,
with an office at 810 Houston St., Suite 2000, Fort Worth, Texas 76102
(hereinafter referred to as "Buyer"), and is based on the following premises:
WHEREAS, Seller desires to sell, assign and convey to Buyer and Buyer
desires to purchase and accept certain oil and gas properties and related
interests; and
WHEREAS, the parties have reached agreement regarding such sale and
purchase.
NOW, THEREFORE, for valuable consideration and the mutual covenants and
agreements herein contained, Seller and Buyer agree as follows:
ARTICLE 1. DEFINITIONS
----------------------
1. Definitions: In this Agreement, capitalized terms have the meanings
-----------
provided in this Article, unless expressly provided otherwise in other Articles.
All defined terms include both the singular and the plural. All references to
Articles refer to Articles in this Agreement, and all references to Exhibits
refer to Exhibits attached to and made a part of this Agreement.
1.1 "Accounting Referee" has the meaning set forth in Article 6.5.
--------------------
1.2 "Affiliate" means any entity that, directly or indirectly, through one
-----------
or more intermediaries, controls or is controlled by or is under common control
with the entity specified. Control means ownership of fifty percent (50%) or
greater of the voting stock of such entity.
1.3 "Alleged Adverse Condition" means an environmental or physical
---------------------------
condition asserted by Buyer in accordance with Article 5.2 that, as of Closing
(as hereinafter defined), is not in compliance with the then existing Laws (as
hereinafter defined), and the costs associated with remediating such individual
---
Alleged Adverse Condition exceeds Seventy-five Thousand and No/100 United States
Dollars (US $75,000) net to Seller's interests. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS AGREEMENT TO THE CONTRARY, BUYER SHALL NOT BE ENTITLED TO
RAISE AN ALLEGED ADVERSE CONDITION UNLESS THE AGGREGATE COST ASSOCIATED WITH
REMEDIATING ALL SUCH ALLEGED ADVERSE CONDITION(S) EXCEEDS THREE PERCENT (3%) OF
THE UNADJUSTED PURCHASE PRICE (AS HEREINAFTER DEFINED) (IT
1
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BEING ACKNOWLEDGED AND AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND
ALL ALLEGED ADVERSE CONDITION(S) UP TO THREE PERCENT (3%) OF THE UNADJUSTED
PURCHASE PRICE).
1.4 "Alleged Title Defect" means a Title Defect (as hereinafter defined)
----------------------
which is asserted by Buyer in accordance with Article 4.2, and the costs
---
associated with curing such individual Alleged Title Defect exceeds Seventy-five
Thousand and No/100 United States Dollars (US $75,000) net to Seller's
interests. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY,
BUYER SHALL NOT BE ENTITLED TO RAISE AN ALLEGED TITLE DEFECT UNLESS THE
AGGREGATE COST ASSOCIATED WITH CURING ALL SUCH ALLEGED TITLE DEFECT(S) EXCEEDS
THREE PERCENT (3%) OF THE UNADJUSTED PURCHASE PRICE (IT BEING ACKNOWLEDGED AND
AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL ALLEGED TITLE
DEFECT(S) UP TO THREE PERCENT (3%) OF THE UNADJUSTED PURCHASE PRICE).
1.5 "Arbitrable Dispute" has the meaning set forth in Article 18.1.
--------------------
1.6 "Assignment and Bill of Sale" means a document in the form of Exhibit
-----------------------------
"I".
1.7 "Business Day" means a Day (as hereinafter defined) excluding
--------------
Saturdays, Sundays and U.S. legal holidays.
1.8 "Buyer Group" has the meaning set forth in Article 8.2.
-------------
1.9 "Casualty Loss" means any loss, damage or reduction in value of the
---------------
Properties which occurs prior to Closing resulting from mechanical failure or
defects, catastrophic occurrences, acts of God or any other losses which are not
the result of normal wear and tear or of natural reservoir changes.
1.10 "Certificate" means a document in the form of Exhibit "L".
-------------
1.11 "Claim" means any and all claims, demands, suits, causes of action,
-------
losses, damages, liabilities, fines, penalties and costs (including attorneys'
fees and costs of litigation) which are brought by or owed to a Third Party (as
hereinafter defined).
1.12 "Claimant" has the meaning set forth in Article 18.1.
----------
1.13 "Claim Notice" has the meaning set forth in Article 8.9.
--------------
1.14 "Close" or "Closing" means the consummation of the transfer of title
--------------------
to the Properties (as hereinafter defined) to Buyer, including execution and
delivery of all documents provided for in this Agreement.
1.15 "Closing Date" means December 1, 1997.
--------------
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1.16 "Computed Interest" means simple interest of ten percent (10%) per
-------------------
annum using a three hundred sixty-five (365) Day year.
1.17 "Confidentiality Agreement" has the meaning set forth in Article 17.5.
---------------------------
1.18 "Day" means a calendar day consisting of twenty-four (24) hours from
-----
midnight to midnight.
1.19 "Defensible Title" means, as to the Properties, such title held by
------------------
Seller as of Closing that is free from any liens, claims or encumbrances, except
for the Permitted Encumbrances (as hereinafter defined), that:
1.19.1 Entitles Seller to receive not less than the "Net Revenue
Interests" set forth in Exhibit "A" of all oil, gas and associated liquid
and gaseous hydrocarbons and non-hydrocarbons produced, saved and marketed
from the Properties; and
1.19.2 Obligates Seller to bear costs and expenses relating to the
ownership, operation, maintenance and repair of the Properties in an amount
not greater than the "Working Interests" set forth in Exhibit "A", unless
there is a corresponding increase in the Net Revenue Interests.
1.20 "Deposit" has the meaning set forth in Article 3.2.
---------
1.21 "Effective Time" means November 1, 1997, at 7:00 a.m., local time
----------------
where the Properties are located.
1.22 "Environmental Claims" means all Claims which are based on breach of
---------------------
Environmental Laws (as hereinafter defined).
1.23 "Environmental Laws" means any and all Laws that relate to: (a) the
--------------------
prevention of pollution or environmental damage, (b) the remediation of
pollution or environmental damage, and/or (c) the protection of the environment
generally; including without limitation, the Clean Air Act, as amended, the
Clean Water Act, as amended, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Federal Water Pollution
Control Act, as amended, the Resource Conservation and Recovery Act of 1976, as
amended, the Safe Drinking Water Act, as amended, the Toxic Substance and
Control Act, as amended, the Superfund Amendments and Reauthorization Act of
1986, as amended, the Hazardous and the Solid Waste Amendments Act of 1984, as
amended, and the Oil Pollution Act of 1990, as amended.
1.24 "Final Accounting Settlement" has the meaning set forth in Article
-----------------------------
6.5.
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1.25 "Final Settlement Date" has the meaning set forth in Article 6.5.
-----------------------
1.26 "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
---------
1976, as amended.
1.27 "Laws" means laws, statutes, ordinances, permits, decrees, orders,
------
judgments, rules or regulations (including without limitation Environmental
Laws) which are promulgated, issued or enacted by a governmental entity or
tribal authority having appropriate jurisdiction.
1.28 "Letters-in-Lieu" means a document in the form of Exhibit "M".
-----------------
1.29 "License Agreement - SAMS" means a document in the form of Exhibit
--------------------------
"Q."
1.30 "License Agreement - 3-D Seismic" means the document referred to in
--------------------------------
Article 12.4.
1.31 "Mineral Deed" means a document in the form of Exhibit "K".
--------------
1.32 "Non-Environmental Claims" means all Claims, except Environmental
--------------------------
Claims.
1.33 "Non-Foreign Affidavit" means a document in the form of Exhibit "O".
-----------------------
1.34 "NORM" means naturally occurring radioactive materials.
------
1.35 "Opinion of Counsel" means a document in the form of Exhibit "N".
--------------------
1.36 "Permitted Encumbrances" means:
------------------------
1.36.1 Royalties, overriding royalties, production payments,
reversionary interests, convertible interests, net profits interests,
division orders and similar burdens encumbering the Properties to the extent
the net cumulative effect of such burdens do not operate to reduce the Net
Revenue Interests of the Properties to less than the Net Revenue Interests
set forth in Exhibit "A," Attachment 1;
1.36.2 Consents to assignment and similar contractual provisions
encumbering the Properties to which, prior to Closing, waivers or consents
are obtained from the appropriate parties;
1.36.3 Preferential rights to purchase encumbering any one (1) or
more of the Properties to which, prior to Closing: (a) waivers are
4
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obtained from the appropriate parties, or (b) the time period for exercising
said right has elapsed;
1.36.4 All rights to consent by, required notices to, filings with
or other actions by a governmental entity or tribal authority in connection
with the sale or conveyance of the Properties, if the same are customarily
obtained subsequent to the transfer of title;
1.36.5 Rights reserved to or vested in a governmental entity or
tribal authority having appropriate jurisdiction to control or regulate the
Properties in any manner whatsoever, and all Laws of any such governmental
entity or tribal authority;
1.36.6 Easements, rights-of-way, servitudes, surface leases, sub-
surface leases, grazing rights, logging rights, canals, ditches, reservoirs,
pipelines, utility lines, telephone lines, power lines, railways, streets,
roads, highways and structures on, over and through the Properties, to the
extent such rights, interests or structures do not materially interfere with
the operation of the Properties;
1.36.7 The terms and conditions of all leases, units, agreements,
contracts, instruments, licenses and permits associated with, attributable
to or encumbering the Properties which have been filed with the appropriate
governmental entity or tribal authority, placed of record in the appropriate
County records or otherwise disclosed by Seller to Buyer;
1.36.8 Liens for taxes or assessments not yet due or not yet
delinquent or, if delinquent, that are being contested by Seller in good
faith in the normal course of business;
1.36.9 Liens of operators relating to obligations not yet due or not
yet delinquent or, if delinquent, that are being contested by Seller in good
faith in the normal course of business;
1.36.10 Alleged Title Defect(s) which do not meet the individual or
aggregate threshold amounts set forth in Article 1.4 or which Buyer has
waived under Article 4.3;
1.36.11 Alleged Adverse Condition(s) which do not meet the individual
or aggregate threshold amounts set forth in Article 1.3 or which Buyer has
waived under Article 5.3;
1.36.12 Gas imbalances associated with the Properties;
1.36.13 Suspense funds associated with the Properties; and
5
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1.36.14 Such defects or irregularities in the title to the Properties
that do not materially interfere with the operation, value or use of the
Properties affected thereby and that would be considered not material when
applying general industry standards.
1.37 "Process Safety Management" has the meaning set forth in Article 8.8.
---------------------------
1.38 "Property" or "Properties" means Seller's ownership interests in the
--------------------------
properties (real, personal or mixed) and appurtenant rights (contractual or
otherwise) as follows:
1.38.1 All of Seller's undivided interests in, to and under, or
derived from, the oil and gas leasehold interests, royalty interests,
overriding royalty interests, mineral interests, production payments, net
profits interests and surface interests associated with the interests which
are described in Exhibit "A";
1.38.2 All of Seller's undivided interests in, to and under, or
derived from, all of the presently existing and valid unitization,
communization and pooling declarations, orders, and agreements (including
all units formed by voluntary agreement and those formed under the rules,
regulations, orders or other official acts of any governmental entity or
tribal authority having appropriate jurisdiction) to the extent they relate
to any of the interests which are described in Exhibit "A", or the
production of oil, gas or other hydrocarbon and non-hydrocarbon substances
attributable thereto;
1.38.3 All of Seller's undivided interests in, to and under, or
derived from, all of the presently existing and valid oil sales contracts,
casinghead gas sales contracts, gas sales contracts, processing contracts,
gathering contracts, transportation contracts, easements, rights-of-way,
servitudes, surface leases, subsurface leases, permits, licenses, farm-out
contracts, farm-in contracts, balancing contracts (including but not limited
to the gas imbalances described in Exhibit "D"), suspense funds, operating
agreements, areas of mutual interest, and other contracts, agreements and
instruments (including but not limited to the material contracts described
in Exhibit "C") to the extent they relate to any of the interests which are
described in Exhibit "A", or the production of oil, gas or other hydrocarbon
and non-hydrocarbon substances attributable thereto;
1.38.4 All of Seller's undivided interests in, to and under, or
derived from, the personal property, improvements, fixtures, wells (whether
producing, plugged and abandoned, shut-in, injection, disposal or water
supply), tanks, boilers, buildings, machinery, equipment, pipelines, utility
lines, power lines, telephone lines, roads and other
6
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appurtenances, to the extent the same are situated upon and used or held for
use by Seller solely in connection with the ownership, operation,
maintenance or repair of the interests which are described in Exhibit "A",
or the production of oil, gas or other hydrocarbon and non-hydrocarbon
substances attributable thereto;
1.38.5 All of Seller's undivided interests in, to and under, or
derived from, 3-D seismic, geologic or geophysical information and data to
the extent the same relates to any of the interests which are described in
Exhibit "A", or the production of oil, gas or hydrocarbon and non-
hydrocarbon substances attributable thereto; and
1.38.6 Interests in, to and under, or derived from, the partnerships
(tax or otherwise) described in Exhibit "E" as agreed pursuant to Article
12.8.
SELLER EXCEPTS, RESERVES AND RETAINS, unto itself, its Affiliates,
successors and assigns from the Properties the following properties (real,
personal or mixed) and appurtenant rights (contractual or otherwise):
(a) Any and all seismic, geologic or geophysical information and data that
are: (i) interpretive in nature, (ii) covered by an obligation of non-
disclosure, (iii) covered by an obligation of confidentiality, (iv) covered by a
prohibition against transfer; (v) covers (in whole or in part) retained assets
of Seller; or which is 2-D seismic data; provided that Seller shall use all
reasonable efforts to remove or to obtain waiver of any such non-disclosure or
confidentiality obligation prohibition against transfer;
(b) Any and all pipelines, equipment, facilities, permits, contracts,
agreements, easements, rights-of-way, surface leases and subsurface leases owned
by an Affiliate of Seller;
(c) Any and all records which consist of previous offers and economic
analyses associated with the purchase, sale or exchange of the Properties,
proprietary information, interpretive information, reserve data, internal
communications, personnel information, tax information, information covered by a
non-disclosure obligation and information covered by a legal privilege;
(d) The properties (real, personal and mixed) and appurtenant rights
(contractual or otherwise) described in Exhibit "F," provided, however, that as
to any compressors and separators listed on Exhibit "F" which are owned one
hundred percent by Seller, such compressors and separators shall be deemed
listed on Exhibit "F" in error and shall be conveyed to Buyer as part of the
Properties; and
(e) Except as otherwise provided in this Agreement, a concurrent interest
in, to and under, or derived from, the contracts, agreements,
7
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instruments, permits, easements, rights-of-way, servitudes, surface leases,
subsurface leases and any other rights (contractual or otherwise) to the extent
that they relate to or affect the interests reserved herein.
1.39 "Purchase Price" has the meaning set forth in Article 3.1.
----------------
1.40 "Records" means all of Seller's books, records and files related to
---------
the Properties; provided however, the term Records shall not include (and Seller
shall have no obligation to deliver to Buyer) previous offers and economic
analyses associated with the purchase, sale or exchange of the Properties,
proprietary information, interpretive information, reserve data, internal
communications, personnel information, tax information, information covered by a
non-disclosure obligation and information covered by a legal privilege.
1.41 "Respondent" has the meaning set forth in Article 18.1.
------------
1.42 "Seller Group" has the meaning set forth in Article 8.2.
--------------
1.43 "Sublease Agreement" means a document in the form of Exhibit "R".
--------------------
1.44 "Surface Deed" means a document in the form of Exhibit "J".
--------------
1.45 "Third Party" means any person or entity, governmental or otherwise,
-------------
other than Seller and Buyer.
1.46 "Title Defect" means any lien, encumbrance, encroachment or defect
--------------
associated with Seller's title to the Properties (excluding Permitted
Encumbrances) that would cause Seller, as of Closing, not to have Defensible
Title.
1.47 "Transition Agreement" means a document in the form of Exhibit "P".
----------------------
1.48 "Transitional Automation Agreement" refers to the document described
---------------------------------
in Article 12.8.
ARTICLE 2. SALE AND PURCHASE
----------------------------
2.1 Sale and Purchase. On the Closing Date, effective as of the Effective
-----------------
Time and upon the terms and conditions herein set forth, Seller agrees to sell
and assign the Properties to Buyer and Buyer agrees to buy and accept the
Properties.
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ARTICLE 3. PURCHASE PRICE, DEPOSIT AND PREFERENTIAL RIGHTS
----------------------------------------------------------
3.1 Purchase Price. The total consideration, subject to adjustments as set
--------------
forth in this Agreement, paid to Seller by Buyer for the Properties shall be (a)
Two Hundred Fifty-Two Million and no/100 United States Dollars
(US$252,000,000.00) ("Purchase Price"), payable in full at Closing in
immediately available funds and (b) a warrant to purchase Six Hundred Twenty-
Five Thousand (625,000) shares of common stock of Buyer on mutually agreed terms
as generally outlined on Exhibit "B." The Purchase Price shall be increased by
the Computed Interest from the Effective Time through Closing, provided,
however, that Buyer shall not be required to pay Computed Interest from November
1, 1997 through November 30, 1997 or on the Trade Assets Value, if Seller
exercises its option to acquire the trade properties described in Article 16.4.
3.2 Deposit. Upon the execution of this Agreement, Buyer shall pay to
-------
Seller a deposit in the amount of ten percent (10%) of the unadjusted Purchase
Price ("Deposit"). In the event of Closing, the Purchase Price shall be credited
by the amount of the Deposit (plus Computed Interest on the Deposit from the
date of receipt by Seller until Closing). If Closing does not occur, the Deposit
(plus Computed Interest on the Deposit from the date of receipt by Seller until
termination) will be refunded to Buyer, unless Closing failed to occur as a
result of Buyer's breach of this Agreement (including without limitation Buyer's
failure to comply with Article 14.1) in which case Seller shall retain the
Deposit plus all interest thereon as liquidated damages and not as a penalty.
3.3 Preferential Rights To Purchase. Buyer represents that it has made a
-------------------------------
good faith allocation of the Purchase Price to assets comprising the Properties,
and such allocation as set forth in Exhibit "A" shall be used by Seller to
provide any required preferential purchase right notifications. If, prior to
Closing, a holder of a preferential purchase right notifies Seller that it
intends to exercise its rights with respect to a Property to which its
preferential purchase right applies (as determined in accordance with the
agreement in which the preferential purchase right arises), the Property
covered by said preferential purchase right shall be excluded from the
Properties to be conveyed to Buyer, and the Purchase Price shall be reduced by
the value allocated to said Property in Exhibit "A". Buyer acknowledges and
agrees that Seller shall determine (in its sole judgment) the extent of the
preferential purchase rights encumbering the Properties, and said determination
shall be used by Seller to provide the preferential purchase right
notifications. The form of notice shall be reviewed by Buyer, and Seller shall
send out preferential purchase right notices by October 10, 1997, except with
respect to those notices which must necessarily be given after other notices
have been waived or have expired. If the holder of the preferential purchase
right fails to consummate the purchase of the Property subject to the
preferential purchase right, Seller shall promptly notify Buyer. Within ten (10)
Business Days after Buyer's receipt of such notice or Closing,
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whichever is later, Seller shall sell to Buyer, and Buyer shall purchase from
Seller, such Property under the terms of this Agreement for a price equal to the
value allocated to such Property in Exhibit "A". Notwithstanding the foregoing,
Buyer shall have no obligation under this Agreement or otherwise to purchase the
Property if Buyer is not notified of the preferential purchase right holder's
failure to consummate the purchase of the Property within ninety (90) Days
following Closing.
ARTICLE 4. TITLE REVIEW
-----------------------
4.1 Review of Title Records. Upon execution of this Agreement, Seller
-----------------------
shall make available to Buyer during reasonable business hours Records in
Seller's possession relating to the title to the Properties. Buyer shall be
entitled to review said title Records. Buyer shall have the right to reasonably
request copies of any and all such title Records and upon such request, Seller
shall provide the requested copies to Buyer at Buyer's expense.
4.2 Alleged Title Defects. As soon as reasonably practicable (and on an
---------------------
ongoing basis), but in no event later than one hundred twenty (120) Days after
Closing, Buyer shall notify Seller of any Properties which are subject to
Alleged Title Defect(s). Buyer's notice asserting Alleged Title Defect(s) shall
include a description and full explanation (including any and all supporting
documentation associated therewith) of each Alleged Title Defect being claimed
and a value which Buyer in good faith attributes to curing the same. Seller,
during said one hundred twenty (120) Day period, shall have the right to notify
Buyer of any increases in Net Revenue Interest or decreases in Working Interest
in the Properties and request a corresponding adjustment. Buyer and Seller
shall meet from time to time as necessary in an attempt to mutually agree on a
proposed resolution with respect to the Alleged Title Defect(s) raised by Buyer
and increases in Net Revenue Interest or decreases in Working Interest raised by
Seller. The value allocated to each Property as set forth on Exhibit "A" and
the costs to cure such title defects shall be used by the parties to determine
the amount of any adjustment, if any, due to the existence of an Alleged Title
Defect. It is recognized that good faith differences of opinion may exist
between Buyer and Seller in connection with the Alleged Title Defect(s) raised
by Buyer and adjustments to the Net Revenue Interests or Working Interests
raised by Seller, including without limitation, disputes as to: (a) whether or
not the alleged defect constitutes an Alleged Title Defect within the meaning of
this Agreement, (b) whether or not the magnitude of the alleged defect
individually or in the aggregate exceeds the threshold amounts set forth in
Article 1.4, (c) whether or not the Alleged Title Defect raised by Buyer was
properly and timely asserted by Buyer pursuant to this Article, and/or (d) the
appropriate upward or downward adjustment, if any, on account of a change in the
Net Revenue Interest or Working Interests from those set forth in Exhibit A,"
Attachment 1. If any such differences of opinion are not resolved by mutual
agreement of Buyer and Seller, either party shall have the right, exercisable
within one hundred eighty (180) Days after Closing, to initiate binding
arbitration in accordance with Article 18.1,
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using arbitrators who are attorney(s) licensed in the state where the Property
at issue is located and who have at least ten (10) years oil and gas title
experience.
4.3 Waiver. EXCEPT FOR CLAIMS BUYER ASSERTS UNDER SELLER'S SPECIAL
------
WARRANTY OF TITLE CONTAINED ARTICLE 9.1, ALL TITLE OBJECTIONS (INCLUDING WITHOUT
LIMITATION ALLEGED TITLE DEFECT(S)) NOT RAISED OR REFERRED TO BINDING
ARBITRATION, AS APPLICABLE, BY BUYER WITHIN THE TIME PERIOD PROVIDED IN ARTICLE
4.2 SHALL BE WAIVED BY BUYER FOR ALL PURPOSES, AND BUYER SHALL HAVE NO RIGHT TO
SEEK AN ADJUSTMENT TO THE PURCHASE PRICE, MAKE A CLAIM (IN ACCORDANCE WITH
ARTICLE 18.1 OR OTHERWISE) AGAINST SELLER OR SEEK INDEMNIFICATION (IN ACCORDANCE
WITH ARTICLE 8 OR OTHERWISE) FROM SELLER ASSOCIATED WITH THE SAME, AND BUYER
(ON BEHALF OF ITSELF, ITS OFFICERS, AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS
AND ASSIGNS) IRREVOCABLY WAIVES SUCH CLAIMS.
ARTICLE 5. INSPECTION OF PREMISES
---------------------------------
5.1 Inspection of Premises. Prior to Closing, Buyer shall have access
----------------------
during reasonable business hours to the Seller-operated Properties, and Seller
shall use reasonable efforts to obtain permission for Buyer to gain access to
the Third Party-operated Properties, for the purpose of inspecting the
environmental and physical condition of the same. Such inspection shall be
conducted in accordance with the terms of the Confidentiality Agreement.
5.2 Alleged Adverse Conditions. As soon as reasonably practical (and on
--------------------------
an ongoing basis), but in no event later than one hundred and eighty (180) Days
after Closing, Buyer shall notify Seller of any Properties which are subject to
Alleged Adverse Condition(s). Buyer's notice of Alleged Adverse Condition(s)
shall include a complete description of each individual condition to which Buyer
takes exception (including any and all supporting documentation associated
therewith) and the costs which Buyer in good faith attributes to remediating the
same. In evaluating the existence or magnitude of an Alleged Adverse Condition,
due consideration shall be given to the length of time the Alleged Adverse
Condition has been in existence and whether such fact, circumstance or condition
is of the type expected to be encountered in the area involved, and whether the
Alleged Adverse Condition is customarily acceptable to reasonable persons
engaged in the business of ownership and operation of oil and gas properties.
Buyer and Seller shall meet from time to time as necessary in an attempt to
mutually agree on a proposed resolution with respect to the Alleged Adverse
Condition(s) raised by Buyer. The value allocation to each Property as set forth
on Exhibit "A" and the costs to cure such adverse condition shall be used by the
parties to determine the amount of any adjustment, if any, due to the existence
of an Alleged Adverse Condition. It is recognized that good faith differences
of opinion may exist between Buyer and Seller in connection with the Alleged
Adverse Condition(s) raised by Buyer, including without limitation,
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disputes as to: (a) whether or not the alleged defect constitutes an Alleged
Adverse Condition within the meaning of this Agreement, (b) whether or not the
magnitude of the alleged defect individually or in the aggregate exceeds the
threshold amounts set forth in Article 1.3, (c) whether or not the Alleged
Adverse Condition raised by Buyer was properly and timely asserted by Buyer
pursuant to this Article, and/or (d) the adjustment, if any, on account of the
Alleged Adverse Condition. If any such difference of opinion regarding an
Alleged Adverse Condition raised by Buyer is not resolved by mutual agreement of
Buyer and Seller, either party shall have the right, exercisable within two
hundred seventy (270) Days after Closing, to initiate binding arbitration in
accordance with Article 18.1. Notwithstanding anything contained in this
Agreement to the contrary (including Article 18.1), if Seller disagrees with the
decision of the arbitration panel, Seller shall have the right (but not the
obligation) to: (i) remediate, at Seller's sole cost, the Property at issue to a
point where it is in compliance with the Laws, or (ii) require the reassignment
of the Property at issue from Buyer to Seller. If Seller elects to require the
reassignment of the Property at issue, Buyer and Seller will take all necessary
action (including without limitation, execution of documentation and conducting
an accounting) required to place the parties back into a position with respect
to the Property at issue just prior to Closing.
5.3 Waiver. ALL ADVERSE CONDITIONS (INCLUDING WITHOUT LIMITATION ALLEGED
------
ADVERSE CONDITION(S)) NOT RAISED OR REFERRED TO BINDING ARBITRATION, AS
APPLICABLE, BY BUYER WITHIN THE TIME PERIOD PROVIDED IN ARTICLE 5.2 SHALL BE
WAIVED BY BUYER FOR ALL PURPOSES, AND BUYER SHALL HAVE NO RIGHT TO SEEK AN
ADJUSTMENT TO THE PURCHASE PRICE, MAKE A CLAIM (IN ACCORDANCE WITH ARTICLE 18.1
OR OTHERWISE) AGAINST SELLER OR SEEK INDEMNIFICATION (IN ACCORDANCE WITH ARTICLE
8 OR OTHERWISE) FROM SELLER ASSOCIATED WITH THE SAME, AND BUYER (ON BEHALF OF
ITSELF, ITS OFFICERS, AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS)
IRREVOCABLY WAIVES SUCH CLAIMS.
ARTICLE 6. ACCOUNTING
---------------------
6.1 Revenues, Expenses and Capital Expenditures. All merchantable oil,
-------------------------------------------
liquid hydrocarbon and non-hydrocarbon substances stored in tanks and vessels on
the Properties (including any and all line fill owned by Seller or its
Affiliates downstream of the custody transfer point) will be gauged to the
bottom of the flange by Seller or the operator of the Properties, as applicable,
as of the Effective Time, and Seller shall be entitled to the proceeds
associated with such oil, liquid hydrocarbon and non-hydrocarbon substances so
gauged when sold. Oil, liquid hydrocarbon and non-hydrocarbon substances in
treating equipment and separation equipment below pipeline connections as of the
Effective Time shall not be considered to be merchantable and shall become the
property of Buyer. Seller shall be entitled to all operating revenues and
related accounts receivable arising in the ordinary course of business
attributable to the Properties and shall be responsible for all operating
expenses and related
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accounts payable (except as provided below) arising in the ordinary course of
business attributable to the Properties, in each case to the extent they relate
to the period of time prior to the Effective Time. Buyer shall be entitled to
all operating revenues and related accounts receivable arising in the ordinary
course of business attributable to the Properties and responsible for the
payment of all operating expenses and related accounts payable arising in the
ordinary course of business attributable to the Properties, in each case to the
extent they relate to time after the Effective Time. Notwithstanding anything
contained in this Agreement to the contrary, Buyer shall assume and be solely
responsible for: (a) any and all gas imbalances associated with the Properties,
including without limitation all rights related to underproduction, if any, and
(b) any and all capital expenditures (i.e., costs of wells, production
---
equipment, facilities (which also includes casing, tubing, tank batteries, flow
lines and separators), and land and building acquisitions) associated with the
Properties to the extent said capital expenditures were incurred (or the
obligation to incur said capital expenditures was undertaken) by Seller within
the period of time six (6) months prior to Closing and exceed one percent (1%)
of the unadjusted Purchase Price. The actual amounts or values associated with
the above shall be accounted for in the Final Accounting Settlement.
6.2 Taxes. All taxes and assessments, including without limitation,
-----
excise taxes, ad valorem taxes and any other federal, state, local or tribal
taxes or assessments attributable to the ownership or operation of the
Properties prior to the Effective Time shall remain Seller's responsibility, and
all deductions, credits or refunds pertaining to the aforementioned taxes and
assessments, no matter when received, shall belong to Seller. All taxes and
assessments, including without limitation, excise taxes, ad valorem taxes and
any other federal, state, local or tribal taxes and assessments attributable to
the ownership or operation of the Properties after the Effective Time (excluding
Seller's income taxes from the Effective Time through Closing and any associated
capital gains taxes which shall remain Seller's obligation) shall be Buyer's
responsibility, and all deductions, credits or refunds pertaining to the
aforementioned taxes and assessments, no matter when received, shall belong to
Buyer. The actual amounts or values associated with the above, shall be
accounted for in the Final Accounting Settlement. Buyer shall additionally be
solely responsible for all transfer, sales, use or similar taxes resulting from
or associated with the transaction contemplated under this Agreement.
Notwithstanding anything contained in this Agreement to the contrary, Seller
shall be entitled to retain any and all Section 29 tax credits associated with
the Properties from the Effective Time through Closing.
6.3 Obligations and Credits. All prepaid insurance premiums, utility
-----------------------
charges, taxes, rentals, deposits and any other prepaids applicable to the
period of time after the Effective Time, if any, and attributable to the
Properties shall be reimbursed to Seller by Buyer, and all accrued payables
applicable to the period of time prior to the Effective Time, if any, and
attributable to the Properties shall be the responsibility of Seller. The
actual amounts or values associated with the
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above shall be accounted for in the Final Accounting Settlement.
6.4 Miscellaneous Accounting. In addition to the items set forth in
------------------------
Articles 6.1 through 6.3, any other amounts due between Buyer and Seller related
to the ownership or operation of the Properties from the Effective Time through
Closing shall be accounted for in the Final Accounting Settlement.
6.5 Final Accounting Settlement. As soon as reasonably practicable, but
---------------------------
in no event later than one hundred and eighty (180) Days after Closing, Seller
shall deliver to Buyer a post-Closing statement setting forth a detailed
calculation of all post-Closing adjustments applicable to the period of time
between the Effective Time and Closing ("Final Accounting Settlement"). As soon
as reasonably practicable, but in no event later than sixty (60) Days after
Buyer receives the post-Closing statement, Buyer shall deliver to Seller a
written report containing any changes which Buyer proposes to be made to such
post-Closing statement. If Buyer fails to timely deliver the written report to
Seller containing changes Buyer proposes to be made to the post-Closing
statement, the post-Closing statement delivered by Seller shall be deemed to be
true and correct and the same shall be final and binding on the parties and not
subject to arbitration hereunder. As soon as reasonably practicable, but in no
event later than fifteen (15) Days after Seller receives Buyer's written report,
the parties shall meet and undertake to agree on the final post-Closing
adjustments. If the parties fail to agree on the final post-Closing adjustments
within such fifteen (15) Day period, the disputed items shall be resolved by
submitting the same to Ernst & Young (the "Accounting Referee"). The Accounting
Referee shall resolve the dispute(s) regarding the post-Closing adjustments
within thirty (30) Days after having the relevant materials submitted for
review. The decision of the Accounting Referee shall be binding on and non-
appealable by the parties. The fees and expenses associated with the Accounting
Referee shall be borne equally by Buyer and Seller. The date upon which all
amounts associated with the Final Accounting Settlement are agreed to by the
parties, whether by decision of the Accounting Referee or otherwise, shall be
herein called the "Final Settlement Date". Any amounts owed by either party to
the other as a result of such post-Closing adjustments shall be paid within five
(5) Business Days after the Final Settlement Date.
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6.6 Post-Final Accounting Settlement. Any revenues received or costs and
--------------------------------
expenses paid by Buyer after the Final Accounting Settlement which are
attributable to the ownership or operation of the Properties prior to the
Effective Time, and not assigned to Buyer, shall be billed or reimbursed, as
appropriate, to Seller within thirty (30) Days after receipt by Buyer. Any
revenues received or costs and expenses paid by Seller after the Final
Accounting Settlement which are attributable to the ownership or operation of
the Properties after the Effective Time, and not reserved by Seller, shall be
billed or reimbursed, as appropriate, to Buyer within thirty (30) Days after
receipt by Seller.
6.7 Suspense Funds. At Closing or with the Final Accounting Settlement,
--------------
at Seller's option, Seller shall transfer to Buyer all funds, if any, held by
Seller in suspense owing to Third Parties on account of production from the
Properties. When Seller transfers such suspense accounts, Buyer shall assume
sole responsibility for the payment thereof to Third Parties and SHALL
INDEMNIFY, DEFEND, AND HOLD HARMLESS Seller from all Claims, relating to or
arising from Buyer's payment, mispayment, or failure to make payment of any or
all such funds, excluding, however, any Claim based upon Seller's failure to
disburse funds prior to the time such funds are transferred to Buyer.
ARTICLE 7. LOSS, CASUALTY AND CONDEMNATION
-------------------------------------------
7.1 Notice of Loss. From the date hereof until Closing, Seller shall
--------------
promptly notify Buyer of any loss or damage to the Properties, or any part
thereof, known to Seller exceeding Fifty Thousand and No/100 United States
Dollars (US $50,000) net to Seller's interest.
7.2 Casualty and Condemnation. If a substantial part of the Properties,
-------------------------
shall prior to Closing: (a) be destroyed by a Casualty Loss, or (b) be taken in
condemnation or if proceedings for such purposes shall be pending; then Seller
and Buyer shall attempt to mutually agree on a reduction in the Purchase Price
reflecting the reduction in the value of the Properties affected by the Casualty
Loss or taking. If Seller and Buyer are unable to mutually agree on such
reduction, either party shall have the right, exercisable within ninety (90)
Days after Closing, to initiate binding arbitration in accordance with Article
18.1. Seller shall retain any and all sums paid to Seller, unpaid awards,
insurance proceeds or other payments associated with or attributable to such
Casualty Loss or taking.
ARTICLE 8. ALLOCATION OF RESPONSIBILITIES AND INDEMNITIES
---------------------------------------------------------
8.1 Opportunity for Review. EACH PARTY REPRESENTS THAT IT HAS HAD AN
----------------------
ADEQUATE OPPORTUNITY TO REVIEW THE FOLLOWING INDEMNITY AND RELEASE PROVISIONS,
INCLUDING THE OPPORTUNITY TO SUBMIT THE SAME TO LEGAL COUNSEL FOR REVIEW AND
COMMENT. BASED UPON THE FOREGOING REPRESENTATION, THE
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PARTIES AGREE TO THE PROVISIONS SET FORTH BELOW.
8.2 Seller's Non-Environmental Indemnity Obligation. SELLER SHALL, SUBJECT
-----------------------------------------------
TO THE LIMITATIONS SET FORTH BELOW, RELEASE BUYER FROM AND SHALL FULLY PROTECT,
INDEMNIFY AND DEFEND BUYER, ITS OFFICERS, AGENTS, EMPLOYEES AND AFFILIATES
(COLLECTIVELY, "BUYER GROUP") AND HOLD THEM HARMLESS FROM AND AGAINST ANY AND
ALL NON-ENVIRONMENTAL CLAIMS AND ANY AND ALL OCCURRENCES AND CONDITIONS WHICH
WOULD CONSTITUTE NON-ENVIRONMENTAL CLAIMS BUT WHICH ARE ASSERTED BY SELLER, ITS
OFFICERS, AGENTS, EMPLOYEES AND AFFILIATES (COLLECTIVELY, "SELLER GROUP")
RELATING TO, ARISING OUT OF, OR CONNECTED, DIRECTLY OR INDIRECTLY, WITH THE
OWNERSHIP OR OPERATION OF THE PROPERTIES, OR ANY PART THEREOF, PERTAINING TO THE
PERIOD OF TIME PRIOR TO CLOSING, INCLUDING WITHOUT LIMITATION, NON-ENVIRONMENTAL
CLAIMS RELATING TO: (A) INJURY OR DEATH OF ANY PERSON OR PERSONS WHOMSOEVER,
(B) DAMAGES TO OR LOSS OF ANY PROPERTY OR RESOURCES, (C) COMMON LAW CAUSES OF
ACTION SUCH AS NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, NUISANCE OR
TRESPASS, AND/OR (D) FAULT IMPOSED BY STATUTE, RULE, REGULATION OR OTHERWISE.
THE INDEMNITY OBLIGATION AND RELEASE PROVIDED HEREIN SHALL APPLY REGARDLESS OF
CAUSE OR OF ANY NEGLIGENT ACTS OR OMISSIONS OF BUYER GROUP.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, SELLER
SHALL HAVE NO OBLIGATION UNDER THIS AGREEMENT OR OTHERWISE TO PROTECT,
INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER GROUP FROM AND AGAINST ANY ONE OR MORE
OF THE FOLLOWING: (I) NON-ENVIRONMENTAL CLAIMS FOR WHICH BUYER HAS NOT PROVIDED
SELLER WITH WRITTEN NOTICE OF SUCH NON-ENVIRONMENTAL CLAIM IN ACCORDANCE WITH
ARTICLE 8.9 WITHIN EIGHTEEN (18) MONTHS AFTER CLOSING (IT BEING ACKNOWLEDGED AND
AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL NON-ENVIRONMENTAL
CLAIMS NOT RAISED WITHIN SUCH EIGHTEEN MONTH PERIOD), AND (II) NON-ENVIRONMENTAL
CLAIMS UP TO THREE PERCENT (3%) OF THE UNADJUSTED PURCHASE PRICE (IT BEING
ACKNOWLEDGED AND AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL
NON-ENVIRONMENTAL CLAIMS UP TO THREE PERCENT (3%) OF THE UNADJUSTED PURCHASE
PRICE).
8.3 Seller's Environmental Indemnity Obligation. SELLER SHALL, SUBJECT TO
-------------------------------------------
THE LIMITATIONS SET FORTH BELOW, RELEASE BUYER FROM AND SHALL FULLY PROTECT,
INDEMNIFY AND DEFEND BUYER GROUP AND HOLD THEM HARMLESS FROM AND AGAINST ANY AND
ALL ENVIRONMENTAL CLAIMS AND ANY AND ALL OCCURRENCES AND CONDITIONS WHICH WOULD
CONSTITUTE ENVIRONMENTAL CLAIMS BUT WHICH ARE ASSERTED BY SELLER GROUP RELATING
TO, ARISING OUT OF, OR CONNECTED, DIRECTLY OR INDIRECTLY, WITH THE OWNERSHIP OR
OPERATION OF THE PROPERTIES, OR ANY PART THEREOF, PERTAINING TO THE PERIOD OF
TIME PRIOR TO CLOSING, INCLUDING WITHOUT LIMITATION, ENVIRONMENTAL CLAIMS
RELATING TO: (A) INJURY OR DEATH OF ANY PERSON OR PERSONS WHOMSOEVER, (B)
DAMAGES TO OR LOSS OF ANY PROPERTY OR RESOURCES, (C) POLLUTION, ENVIRONMENTAL
DAMAGE OR VIOLATION OF ENVIRONMENTAL LAWS, (D) COMMON LAW CAUSES OF ACTION SUCH
AS NEGLIGENCE,
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GROSS NEGLIGENCE, STRICT LIABILITY, NUISANCE OR TRESPASS, AND/OR (E) FAULT
IMPOSED BY STATUTE, RULE, REGULATION OR OTHERWISE. THE INDEMNITY OBLIGATION AND
RELEASE PROVIDED HEREIN SHALL APPLY REGARDLESS OF CAUSE OR OF ANY NEGLIGENT ACTS
OR OMISSIONS OF BUYER GROUP.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, SELLER
SHALL HAVE NO OBLIGATION UNDER THIS AGREEMENT OR OTHERWISE TO PROTECT,
INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER GROUP FROM AND AGAINST ANY ONE OR MORE
OF THE FOLLOWING: (I) ENVIRONMENTAL CLAIMS FOR WHICH BUYER HAS NOT PROVIDED
SELLER WITH WRITTEN NOTICE OF SAID ENVIRONMENTAL CLAIM IN ACCORDANCE WITH
ARTICLE 8.9 WITHIN TWELVE (12) MONTHS AFTER CLOSING (IT BEING ACKNOWLEDGED AND
AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL ENVIRONMENTAL
CLAIMS NOT RAISED WITHIN SUCH TWELVE MONTH PERIOD), (II) ENVIRONMENTAL CLAIMS UP
TO THREE PERCENT (3%) OF THE UNADJUSTED PURCHASE PRICE (IT BEING ACKNOWLEDGED
AND AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL ENVIRONMENTAL
CLAIMS UP TO THREE PERCENT (3%) OF THE UNADJUSTED PURCHASE PRICE), AND (III)
ENVIRONMENTAL CLAIMS GREATER THAN FIFTY PERCENT (50%) OF THE UNADJUSTED PURCHASE
PRICE (IT BEING ACKNOWLEDGED AND AGREED THAT BUYER SHALL BE SOLELY RESPONSIBLE
FOR ANY AND ALL ENVIRONMENTAL CLAIMS GREATER THAN FIFTY PERCENT (50%) OF THE
UNADJUSTED PURCHASE PRICE).
8.4 Buyer's Non-Environmental Indemnity Obligation. BUYER SHALL RELEASE
----------------------------------------------
SELLER FROM AND SHALL FULLY PROTECT, INDEMNIFY AND DEFEND SELLER GROUP AND HOLD
THEM HARMLESS FROM AND AGAINST ANY AND ALL NON-ENVIRONMENTAL CLAIMS AND ANY AND
ALL OCCURRENCES AND CONDITIONS WHICH WOULD CONSTITUTE NON-ENVIRONMENTAL CLAIMS
BUT WHICH ARE ASSERTED BY BUYER GROUP RELATING TO, ARISING OUT OF, OR CONNECTED,
DIRECTLY OR INDIRECTLY, WITH THE OWNERSHIP OR OPERATION OF THE PROPERTIES, OR
ANY PART THEREOF, PERTAINING TO THE PERIOD OF TIME PRIOR TO CLOSING, NO MATTER
WHEN ASSERTED, FOR WHICH SELLER'S INDEMNITY OBLIGATION HAS CEASED, TERMINATED
(IN ACCORDANCE WITH ARTICLE 8.2 OR OTHERWISE) OR DID NOT EXIST, AND FROM AND
---
AGAINST ANY AND ALL NON-ENVIRONMENTAL CLAIMS RELATING TO, ARISING OUT OF, OR
CONNECTED, DIRECTLY OR INDIRECTLY, WITH THE OWNERSHIP OR OPERATION OF THE
PROPERTIES, OR ANY PART THEREOF, PERTAINING TO THE PERIOD OF TIME AT AND AFTER
CLOSING, NO MATTER WHEN ASSERTED; INCLUDING WITHOUT LIMITATION, NON-
ENVIRONMENTAL CLAIMS RELATING TO: (A) INJURY OR DEATH OF ANY PERSON OR PERSONS
WHOMSOEVER, (B) DAMAGES TO OR LOSS OF ANY PROPERTY OR RESOURCES, (C) COMMON LAW
CAUSES OF ACTION SUCH AS NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY,
NUISANCE OR TRESPASS, AND/OR (D) FAULT IMPOSED BY STATUTE, RULE, REGULATION OR
OTHERWISE. THE INDEMNITY OBLIGATION AND RELEASE PROVIDED HEREIN SHALL APPLY
REGARDLESS OF CAUSE OR OF ANY NEGLIGENT ACTS OR OMISSIONS OF SELLER GROUP.
8.5 Buyer's Environmental Indemnity Obligation. BUYER SHALL RELEASE SELLER
------------------------------------------
FROM AND SHALL FULLY PROTECT, INDEMNIFY AND DEFEND SELLER GROUP AND
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HOLD THEM HARMLESS FROM AND AGAINST ANY AND ALL ENVIRONMENTAL CLAIMS AND ANY AND
ALL OCCURRENCES AND CONDITIONS WHICH WOULD CONSTITUTE ENVIRONMENTAL CLAIMS BUT
WHICH ARE ASSERTED BY BUYER GROUP RELATING TO, ARISING OUT OF, OR CONNECTED,
DIRECTLY OR INDIRECTLY, WITH THE OWNERSHIP OR OPERATION OF THE PROPERTIES, OR
ANY PART THEREOF, PERTAINING TO THE PERIOD OF TIME PRIOR TO CLOSING, NO MATTER
WHEN ASSERTED, FOR WHICH SELLER'S INDEMNITY OBLIGATION HAS CEASED, TERMINATED
(IN ACCORDANCE WITH ARTICLE 8.3 OR OTHERWISE) OR DID NOT EXIST, AND FROM AND
-----
AGAINST ANY AND ALL ENVIRONMENTAL CLAIMS RELATING TO, ARISING OUT OF, OR
CONNECTED, DIRECTLY OR INDIRECTLY, WITH THE OWNERSHIP OR OPERATION OF THE
PROPERTIES, OR ANY PART THEREOF, PERTAINING TO THE PERIOD OF TIME AT AND AFTER
CLOSING, NO MATTER WHEN ASSERTED; INCLUDING WITHOUT LIMITATION, ENVIRONMENTAL
CLAIMS RELATING TO: (A) INJURY OR DEATH OF ANY PERSON OR PERSONS WHOMSOEVER, (B)
DAMAGE TO OR LOSS OF ANY PROPERTY OR RESOURCE, (C) POLLUTION, ENVIRONMENTAL
DAMAGE OR VIOLATION OF ENVIRONMENTAL LAWS, (D) COMMON LAW CAUSES OF ACTION SUCH
AS NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, NUISANCE OR TRESPASS, AND/OR
(E) FAULT IMPOSED BY STATUTE, RULE, REGULATION OR OTHERWISE. THE INDEMNITY
OBLIGATION AND RELEASE PROVIDED HEREIN SHALL APPLY REGARDLESS OF CAUSE OR OF ANY
NEGLIGENT ACTS OR OMISSIONS OF SELLER GROUP.
8.6 Asbestos, NORM and/or Mercury. Buyer acknowledges that the Properties
-----------------------------
may currently or have in the past contained asbestos, NORM and/or mercury and
that special procedures may be required for the assessment, remediation,
removal, transportation or disposal of such asbestos, NORM and/or mercury.
Seller has disclosed in Exhibit "G" the issue with El Paso Natural Gas Company
("El Paso") regarding the removal of mercury and for associated clean-up
necessitated by El Paso's use of mercury meters on the Properties, and that
Seller has asserted that El Paso is responsible for such clean-up. Seller
agrees to use all reasonable efforts to obtain a favorable resolution of the
issue with El Paso and agrees to cooperate and coordinate with Buyer with
respect thereto. If transferable, Seller shall have the right at Closing to
assign its rights against El Paso to Buyer and relieve itself of any obligation
under the preceding sentence. NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY (INCLUDING WITHOUT LIMITATION ARTICLES 5.2, 8.2 OR
8.3), BUYER AGREES TO ACCEPT FULL RESPONSIBILITY FOR AND SHALL PAY ALL COSTS AND
EXPENSES ASSOCIATED WITH THE ASSESSMENT, REMEDIATION, REMOVAL, TRANSPORTATION
AND DISPOSAL OF THE ASBESTOS, NORM OR MERCURY ASSOCIATED WITH THE PROPERTIES,
AND SHALL NOT BE ENTITLED TO CLAIM THE FACT THE ASSESSMENT, REMEDIATION,
REMOVAL, TRANSPORTATION OR DISPOSAL OF THE ASBESTOS, NORM OR MERCURY IS NOT
COMPLETE OR THAT ADDITIONAL COST WILL BE REQUIRED TO COMPLETE THE ASSESSMENT,
REMEDIATION, REMOVAL, TRANSPORTATION OR DISPOSAL OF THE ASBESTOS, NORM OR
MERCURY AS AN ALLEGED TITLE DEFECT, ALLEGED ADVERSE CONDITION, BREACH OF
SELLER'S REPRESENTATIONS AND WARRANTIES OR BREACH OF SELLER'S INDEMNITY
OBLIGATION UNDER THIS AGREEMENT, AND BUYER (ON BEHALF OF ITSELF, ITS OFFICERS,
AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS)
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IRREVOCABLY WAIVES SUCH CLAIMS. In conducting the duties and obligations
contained in this Article, Buyer shall comply with the applicable Laws.
8.7 Buyer's Assumption of Obligations. Buyer agrees to assume and shall
---------------------------------
timely perform and discharge all duties and obligations of Seller associated
with the Properties (including without limitation any contractual obligations)
relating to the period of time at and after Closing, and Seller shall incur no
liability for Buyer's failure to properly perform or discharge any such duties
and obligations. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE
CONTRARY (INCLUDING WITHOUT LIMITATION ARTICLES 5.2, 8.2 OR 8.3), BUYER AGREES
TO ACCEPT FULL RESPONSIBILITY FOR AND SHALL PAY ALL COSTS AND EXPENSES
ASSOCIATED WITH THE PLUGGING AND ABANDONMENT OF THE WELLS AND FACILITIES
INCLUDED IN THE PROPERTIES, AND SHALL NOT BE ENTITLED TO CLAIM THE FACT THAT
PLUGGING AND ABANDONMENT OPERATIONS ARE NOT COMPLETE OR THAT ADDITIONAL COST
WILL BE REQUIRED TO COMPLETE THE PLUGGING AND ABANDONMENT OPERATIONS AS AN
ALLEGED TITLE DEFECT, ALLEGED ADVERSE CONDITION, BREACH OF SELLER'S
REPRESENTATIONS AND WARRANTIES OR BREACH OF SELLER'S INDEMNITY OBLIGATION UNDER
THIS AGREEMENT, AND BUYER (ON BEHALF OF ITSELF, ITS OFFICERS, AGENTS, EMPLOYEES,
AFFILIATES, SUCCESSORS AND ASSIGNS) IRREVOCABLY WAIVES SUCH CLAIMS. In
conducting the duties and obligations contained in this Article, Buyer shall
comply with the applicable Laws.
8.8 Process Safety Management. Buyer acknowledges that Process Safety
-------------------------
Management of Highly Hazardous Chemicals; Explosives and Blasting Agents (i.e.,
----
29 CFR 1910) (collectively "Process Safety Management") associated with the
Properties is an ongoing process. NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY (INCLUDING WITHOUT LIMITATION ARTICLES 5.2, 8.2 OR
8.3), BUYER AGREES TO ACCEPT FULL RESPONSIBILITY FOR AND SHALL PAY ALL COSTS AND
EXPENSES ASSOCIATED WITH THE PROCESS SAFETY MANAGEMENT PROCESS (INCLUDING
WITHOUT LIMITATION THE IDENTIFICATION, EVALUATION AND REMEDIATION), AND SHALL
NOT BE ENTITLED TO CLAIM THE FACT THAT PROCESS SAFETY MANAGEMENT IS NOT COMPLETE
OR THAT ADDITIONAL COST WILL BE REQUIRED TO COMPLY WITH OR COMPLETE THE PROCESS
SAFETY MANAGEMENT PROCESS AS AN ALLEGED TITLE DEFECT, ALLEGED ADVERSE CONDITION,
BREACH OF SELLER'S REPRESENTATIONS AND WARRANTIES OR BREACH OF SELLER'S
INDEMNITY OBLIGATION UNDER THIS AGREEMENT, AND BUYER (ON BEHALF OF ITSELF, ITS
OFFICERS, AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS) IRREVOCABLY
WAIVES SUCH CLAIMS. In conducting the duties and obligations contained in this
Article, Buyer shall comply with the applicable Laws.
19
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8.9 Notice of Claims. If a Claim is asserted against a party for which the
----------------
other party may have an obligation of indemnity, it shall be a condition
precedent to the indemnifying party's obligations under this Article 8 that the
indemnified party give the indemnifying party written notice of such Claim
setting forth full particulars of the Claim (including a copy of the written
Claim, if any) as then known by the indemnified party. The indemnified party
shall make a good faith effort to notify the indemnifying party within one (1)
month of receipt of a Claim and shall in all events effect notice within such
time as will allow the indemnifying party a reasonable period of time in which
to evaluate and timely respond to said Claim. The notice of Claim provided
hereunder is referred to as a "Claim Notice."
8.10 Defense of Claims. Upon receipt of a Claim Notice, the indemnifying
-----------------
party may assume the defense of said Claim with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party. The
indemnified party shall cooperate in all reasonable respects in such defense.
If any Claim involves a fact pattern wherein Buyer may have an obligation to
indemnify Seller and Seller may have an obligation to indemnify Buyer, each
party shall have the right to assume the defense of and hire counsel for that
portion of the Claim for which it may have an obligation of indemnity. In all
instances, the indemnified party shall have the right to employ separate counsel
and to participate in the defense of any Claim; provided however, the fees and
expenses of counsel employed by the indemnified party shall be borne solely by
the indemnified party. If the indemnifying party does not notify the indemnified
party within the earlier to occur of: (a) five (5) Days before the time a
response is due in any litigation matter, or (b) sixty (60) Days after receipt
of the Claim Notice, that the indemnifying party elects to undertake the defense
of a Claim, the indemnified party shall have the right to defend, at the expense
of the indemnifying party, the Claim with counsel of the indemnified party's
choosing, subject to the right of the indemnifying party to assume the defense
of the Claim at any time prior to settlement or final determination thereof. In
such event, the indemnified party shall promptly send a written notice to the
indemnifying party of any proposed settlement of a Claim, which settlement the
indemnifying party may accept or reject, in its reasonable judgment, within
thirty (30) days of receipt of such notice, unless the settlement offer is
limited to a shorter period of time in which case the indemnifying party shall
have such shorter period of time in which to accept or reject the proposed
settlement. Failure of the indemnifying party to accept or reject such
settlement within the applicable period of time shall be deemed to be its
rejection of such settlement. Notwithstanding the foregoing, the indemnified
party may settle any matter over the objection of the indemnifying party, but in
so doing the indemnified party shall be deemed to have waived any right to
indemnity therefor as to (and only as to) liabilities with respect to which the
indemnifying party has acknowledged in writing its indemnity obligation.
8.11 Waiver of Certain Damages. EACH OF THE PARTIES HEREBY WAIVES AND
-------------------------
AGREES NOT TO SEEK INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
20
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DAMAGES OF ANY KIND WITH RESPECT TO ANY CLAIM OR DISPUTE ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR BREACH HEREOF. THIS PROVISION SHALL NOT DIMINISH
OR AFFECT IN ANY WAY THE PARTIES' RIGHTS AND OBLIGATIONS UNDER ANY INDEMNITIES
PROVIDED FOR IN THIS AGREEMENT.
8.12 Limitation on Indemnities. IN NO EVENT SHALL AN INDEMNIFYING PARTY
-------------------------
HAVE ANY OBLIGATION OF INDEMNIFICATION TO THE INDEMNIFIED PARTY, IF THE CLAIM
FOR WHICH INDEMNITY IS SOUGHT WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE INDEMNIFIED PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, NOR SHALL ANY INDEMNITY PROVISIONS
IN THIS AGREEMENT APPLY TO OR BE DEEMED TO APPLY TO MATTERS AFFECTING
PROPERTIES (REAL, PERSONAL OR MIXED) AND APPURTENANT RIGHTS (CONTRACTUAL OR
OTHERWISE) OTHER THAN THOSE WHICH ARE COVERED BY THIS AGREEMENT.
8.13 Litigation Obligations. Seller shall retain liability for any
----------------------
litigation, pending or threatened in writing to Seller as of the Effective Time
by Third Parties to the extent based on acts, omissions, event or occurrences
prior to the Effective Time and as to which Seller is or may become a party.
Seller shall also retain liability for liens for delinquent taxes or assessments
or delinquent liens of operators, that are being contested by Seller in good
faith in the normal course of business.
ARTICLE 9. SPECIAL WARRANTY AND DISCLAIMERS
--------------------------------------------
9.1 Special Warranty of Title. SELLER SHALL WARRANT TITLE TO AND FOREVER
-------------------------
DEFEND TITLE TO THE PROPERTIES CONVEYED TO BUYER AGAINST EVERY PERSON WHOMSOEVER
LAWFULLY CLAIMING TITLE TO THE PROPERTIES, OR ANY PART THEREOF BY, THROUGH OR
UNDER SELLER, BUT NOT OTHERWISE.
9.2 Disclaimer - Representations and Warranties. BUYER ACKNOWLEDGES AND
-------------------------------------------
AGREES THAT THE PROPERTIES ARE BEING TRANSFERRED, ASSIGNED AND CONVEYED FROM
SELLER TO BUYER "AS-IS, WHERE-IS", AND WITH ALL FAULTS IN THEIR PRESENT
CONDITION AND STATE OF REPAIR, WITHOUT RECOURSE. EXCEPT AS EXPRESSLY SET FORTH
IN THIS ARTICLE 9, SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS
AND WARRANTIES CONCERNING THE PROPERTIES, EXPRESS, STATUTORY, IMPLIED OR
OTHERWISE, INCLUDING WITHOUT LIMITATION: (A) ANY WARRANTY OF TITLE (EXCEPT FOR
THE SPECIAL WARRANTY OF TITLE SET FORTH IN ARTICLE 9.1), (B) THE EXISTENCE OF
ANY AND ALL PROSPECTS, (C) THE GEOGRAPHIC, GEOLOGIC OR GEOPHYSICAL
CHARACTERISTICS ASSOCIATED WITH ANY AND ALL PROSPECTS, (D) THE EXISTENCE,
QUALITY, QUANTITY OR RECOVERABILITY OF HYDROCARBON RESERVES ASSOCIATED WITH THE
PROPERTIES, (E) THE COSTS, EXPENSES, REVENUES OR RECEIPTS ASSOCIATED WITH THE
PROPERTIES, (F) THE CONTRACTUAL, ECONOMIC OR FINANCIAL DATA ASSOCIATED WITH THE
PROPERTIES, (G) THE CONTINUED FINANCIAL VIABILITY OR PRODUCTIVITY OF THE
PROPERTIES, (H) THE
21
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ENVIRONMENTAL OR PHYSICAL CONDITION OF THE PROPERTIES, (I) THE FEDERAL, STATE,
LOCAL OR TRIBAL INCOME OR OTHER TAX CONSEQUENCES ASSOCIATED WITH THE PROPERTIES,
OR THE AGREEMENTS TO WHICH THE PROPERTIES ARE SUBJECT, (J) THE ABSENCE OF PATENT
OR LATENT DEFECTS, (K) SAFETY, (L) STATE OF REPAIR, (M) MERCHANTABILITY, AND (N)
FITNESS FOR A PARTICULAR PURPOSE; AND BUYER (ON BEHALF OF ITSELF, ITS OFFICERS,
AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS) IRREVOCABLY WAIVES SUCH
CLAIMS.
9.3 Disclaimer - Statements and Information. SELLER EXPRESSLY DISCLAIMS
---------------------------------------
ANY AND ALL LIABILITY AND RESPONSIBILITY FOR AND ASSOCIATED WITH THE QUALITY,
ACCURACY, COMPLETENESS OR MATERIALITY OF THE DATA, INFORMATION AND MATERIALS
FURNISHED (ELECTRONICALLY, ORALLY, BY VIDEO, IN WRITING OR ANY OTHER MEDIUM) AT
ANY TIME TO BUYER, ITS OFFICERS, AGENTS, EMPLOYEES OR AFFILIATES IN CONNECTION
WITH THE TRANSACTION CONTEMPLATED HEREIN, INCLUDING WITHOUT LIMITATION: (A) THE
EXISTENCE OF ANY AND ALL PROSPECTS, (B) THE GEOGRAPHIC, GEOLOGIC OR GEOPHYSICAL
CHARACTERISTICS ASSOCIATED WITH ANY AND ALL PROSPECTS, (C) THE EXISTENCE,
QUALITY, QUANTITY OR RECOVERABILITY OF HYDROCARBON RESERVES ASSOCIATED WITH THE
PROPERTIES, (D) THE COSTS, EXPENSES, REVENUES OR RECEIPTS ASSOCIATED WITH THE
PROPERTIES, (E) THE CONTRACTUAL, ECONOMIC OR FINANCIAL DATA ASSOCIATED WITH THE
PROPERTIES, (F) THE CONTINUED FINANCIAL VIABILITY OR PRODUCTIVITY OF THE
PROPERTIES, (G) THE ENVIRONMENTAL OR PHYSICAL CONDITION OF THE PROPERTIES, AND
(H) THE FEDERAL, STATE, LOCAL OR TRIBAL INCOME OR OTHER TAX CONSEQUENCES
ASSOCIATED WITH THE PROPERTIES, OR THE AGREEMENTS TO WHICH THE PROPERTIES ARE
SUBJECT; AND BUYER (ON BEHALF OF ITSELF, ITS OFFICERS, AGENTS, EMPLOYEES,
AFFILIATES, SUCCESSORS AND ASSIGNS) IRREVOCABLY WAIVES SUCH CLAIMS.
ARTICLE 10. SELLER'S REPRESENTATIONS AND WARRANTIES
----------------------------------------------------
Seller represents and warrants to Buyer that, to the best of Seller's
knowledge, on the date hereof and as of Closing:
10.1 Organization and Good Standing. Seller is a corporation duly
------------------------------
organized, validly existing and in good standing under the Laws of the State of
Delaware, and has all requisite corporate power and authority to own and lease
the Properties. Seller is duly licensed or qualified to do business as a
foreign corporation and is in good standing in all jurisdictions in which the
Properties are located.
10.2 Corporate Authority; Authorization of Agreement. Seller has all
-----------------------------------------------
requisite corporate power and authority to execute and deliver this Agreement,
to consummate the transactions contemplated herein and to perform all of the
terms and conditions to be performed by it as provided for in this Agreement.
The execution and delivery of this Agreement by Seller, the performance by
Seller of all of the terms and conditions to be performed by it and the
22
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consummation of the transactions contemplated herein have been duly authorized
and approved by all necessary corporate action. This Agreement has been duly
executed and delivered by Seller and constitutes the valid and binding
obligation of Seller, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency or other
Laws relating to or affecting the enforcement of creditors' rights and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity).
10.3 No Violations. Assuming expiration or termination of the applicable
-------------
waiting period under the HSR Act, if applicable, the execution and delivery of
this Agreement by Seller does not, and the fulfillment and compliance with the
terms and conditions hereof and the consummation of the transactions
contemplated herein, will not:
10.3.1 Conflict with or require the consent of any person or entity
under any of the terms, conditions or provisions of the certificate of
incorporation or bylaws of Seller;
10.3.2 Violate any provision of, or require any filing, consent or
approval under any Law applicable to or binding upon Seller (assuming
receipt of all consents and approvals of governmental entities or tribal
authorities customarily obtained subsequent to the transfers of title);
10.3.3 Conflict with, result in a breach of, constitute a default under
or constitute an event that with notice or lapse of time, or both, would
constitute a default under, accelerate or permit the acceleration of the
performance required by, or require any consent, authorization or approval
under: (i) any mortgage, indenture, loan, credit agreement or other
agreement, evidencing indebtedness for borrowed money to which Seller is a
party or by which Seller is bound, or (ii) any order, judgment or decree of
any governmental entity or tribal authority; or
10.3.4 Result in the creation or imposition of any lien or encumbrance
upon the Properties.
10.4 Absence of Certain Changes. Between the date of execution of this
--------------------------
Agreement and Closing, there shall not have been without Buyer's prior written
consent:
10.4.1 A waiver of any right of material value relating to the
Properties, other than in the ordinary course of business;
10.4.2 A sale, lease or other disposition of the Properties, other than
in the ordinary course of business, except as otherwise provided in Article
12.5;
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10.4.3 A mortgage, pledge or grant of a lien or security interest in
any of the Properties; or
10.4.4 A contract or commitment to do any of the foregoing.
10.5 Operating Costs. All costs incurred in connection with the operation
---------------
of the Properties have been fully paid and discharged by Seller, except normal
expenses incurred in operating the Properties within the previous sixty (60)
Days or as to which Seller has not yet been billed.
10.6 Litigation. Except as set forth in Exhibit "G" or disclosed prior to
----------
Closing, there is no action, suit or proceeding pending against Seller which
would have a material adverse effect on the value or operation of the Properties
or that would prevent the consummation of the transaction contemplated by this
Agreement.
10.7 Bankruptcy. There are no bankruptcy, reorganization or receivership
----------
proceedings pending, being contemplated by or threatened against Seller.
ARTICLE 11. BUYER'S REPRESENTATIONS AND WARRANTIES
--------------------------------------------------
Buyer represents and warrants to Seller that, to the best of Buyer's
knowledge, on the date hereof and as of Closing:
11.1 Organization and Good Standing. Buyer is a corporation duly organized,
------------------------------
validly existing and in good standing under the Laws of the State of Delaware
and has all requisite corporate power and authority to own and lease the
Properties. Buyer is duly licensed or qualified to do business as a foreign
corporation and is in good standing in all jurisdictions in which the Properties
are located.
11.2 Corporate Authority; Authorization of Agreement. Buyer has all
-----------------------------------------------
requisite corporate power and authority to execute and deliver this Agreement,
to consummate the transactions contemplated herein and to perform all the terms
and conditions to be performed by it as provided for in this Agreement. The
execution and delivery of this Agreement by Buyer, the performance by Buyer of
all the terms and conditions to be performed by it and the consummation of the
transactions contemplated herein have been duly authorized and approved by all
necessary corporate action. This Agreement has been duly executed and delivered
by Buyer and constitutes the valid and binding obligation of Buyer, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency or other Laws relating to or affecting the
enforcement of creditors' rights and general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity).
24
<PAGE>
11.3 No Violations. Assuming expiration or termination of the applicable
-------------
waiting period under the HSR Act, if applicable, the execution and delivery of
this Agreement by Buyer does not, and the fulfillment and compliance with the
terms and conditions hereof and the consummation of the transactions
contemplated herein, will not:
11.3.1 Conflict with or require the consent of any person or entity
under any of the terms, conditions or provisions of the certificate of
incorporation or bylaws of Buyer;
11.3.2 Violate any provision of, or require any filing, consent or
approval under any Law applicable to or binding upon Buyer; or
11.3.3 Conflict with, result in a breach of, constitute a default under
or constitute an event that with notice or lapse of time, or both, would
constitute a default under, accelerate or permit the acceleration of the
performance required by, or require any consent, authorization or approval
under: (i) any mortgage, indenture, loan, credit agreement or other
agreement evidencing indebtedness for borrowed money to which Buyer is a
party or by which Buyer is bound, or (ii) any order, judgment or decree of
any governmental entity or tribal authority.
11.4 SEC Disclosure. Buyer is acquiring the Properties for its own account
--------------
for use in its trade or business, and not with a view toward or for sale in
connection with any distribution thereof, nor with any present intention of
making a distribution thereof within the meaning of the Securities Act of 1933,
as amended.
11.5 Independent Evaluation. BUYER REPRESENTS THAT IT IS SOPHISTICATED IN
----------------------
THE EVALUATION, PURCHASE, OWNERSHIP AND OPERATION OF OIL AND GAS PROPERTIES AND
RELATED FACILITIES. IN MAKING ITS DECISION TO ENTER INTO THIS AGREEMENT AND TO
CONSUMMATE THE TRANSACTION CONTEMPLATED HEREIN, BUYER REPRESENTS THAT: (A) IT
HAS RELIED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION AND EVALUATION OF THE
PROPERTIES, AND (B) IT HAS SATISFIED ITSELF AS TO THE PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTIES.
11.6 Buyer's Reliance. BUYER ACKNOWLEDGES AND AGREES THAT IT IS ENTITLED
----------------
TO RELY ONLY ON THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT.
ARTICLE 12. ADDITIONAL COVENANTS AND CONSIDERATIONS
---------------------------------------------------
12.1 Subsequent Operations.
---------------------
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(a) Within ten (10) Days after Closing, Seller shall send out notices,
where applicable, advising working interest owners of the Properties it
operates that it has transferred its interests in the Properties and
rights under applicable agreements to Buyer. Buyer shall take prompt
action as necessary to relieve Seller of operatorship of the Properties
which Seller currently operates. Seller shall have no obligation under
this Agreement or otherwise to send out notices balloting for the
selection of a successor operator. In the event of any disputes over
operatorship of any of the Properties after Closing, Seller shall
reasonably cooperate with Cross Timbers Oil Company with respect to
such disputes.
(b) Seller makes no representations or warranties to Buyer as to the
transferability or assignability of operatorship of the Properties.
Buyer acknowledges that the rights and obligations associated with
operatorship of the Properties are governed by the applicable
agreement(s) and that operatorship of the Properties will be decided in
accordance with the terms of said agreement(s).
12.2 Operations up to Closing. From the date of this Agreement to
------------------------
Closing, Seller shall conduct Seller's business with respect to the Properties
in a manner which is prudent under the circumstances, and Seller shall notify
Buyer of any occurrences of which Seller becomes aware that would result in
Seller's representations and warranties being incorrect in any material respect
as of and at Closing.
12.3 Transition Agreement. At Closing, Buyer and Seller shall execute
--------------------
the Transition Agreement.
12.4 License Agreement(s).
--------------------
(a) At Closing, Buyer and Seller shall execute the License Agreement -
SAMS, covering certain proprietary technology of Seller, including the
"SAMS" automation system.
(b) Buyer shall execute and deliver to Seller a License Agreement - 3-D
Seismic in a mutually agreed form, granting to Seller, at no cost to
Seller, a right and license to use 3-D seismic data, or any portion
thereof, conveyed to Buyer under the terms of this Agreement.
(c) Buyer shall be entitled at its option to license Seller's retained
2-D seismic data insofar as it pertains to the Properties from Seller's
seismic broker upon the terms established for licensing by such seismic
broker, except that the fee therefor shall be the broker's fee only and
shall not include any fee or reimbursement to Seller.
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12.5 Subleased Agreement. Certain compressors and separators located on
-------------------
the Properties are subject to an existing sublease(s) from Amoco Equipment
Leasing Company ("AELC") to Seller (collectively, "Subleased Equipment"). No
later than fifteen (15) Business Days prior to the Closing Date, Buyer shall
notify Seller in writing that Buyer elects to either (a) enter into the Sublease
Agreement for all of the Subleased Equipment or (b) replace some or all of the
Subleased Equipment and, if not all the Subleased Equipment is to be replaced,
enter into the Sublease Agreement with respect to the Subleased Equipment Buyer
elects to keep on the Properties. At Closing, Buyer and Seller shall execute the
Sublease Agreement in the form attached as Exhibit "R" as to the separators and
compressors specified to be subleased by Buyer pursuant to this provision. If
Buyer elects option (b) above, Seller shall remove the items of Subleased
Equipment which Buyer does not wish to sublease from the Properties at Seller's
sole expense within thirty (30) Days after Closing.
12.6 NGL Call. Buyer and Seller shall mutually agree on a provision under
--------
which Seller shall retain a call on natural gas liquids.
12.7 Transitional Automation Agreement. It is understood that the
---------------------------------
Jupiter Automation System and PC SAMS system have been installed on San Juan
wells being retained by Seller as well as on some of the wells which comprise
the Properties. These systems cannot be split upon transfer of ownership.
Therefore, Seller shall provide training for Buyer's employees for a specified
period after Closing to allow Buyer to replicate and operate the systems, all at
Buyer's cost. However, automation hardware located at wells which comprise the
Properties shall be included in the sale of the Properties. The parties shall
agree on a mutually satisfactory form of Transitional Automation Agreement which
will be executed at Closing, incorporating the basic terms outlined in Exhibit
"H."
12.8 Partnership Agreements and Ridgewood Contracts. Only a portion of
-----------------------------------------------
the properties covered by the partnership agreements listed on Exhibit "E" and
covered by the Ridgewood contracts are included in the Properties. The parties
shall agree on a mutually satisfactory way of handling the contractual rights
and obligations under all of such agreements and contracts.
12.9 Stock Warrants. Prior to the Closing, Seller and Buyer shall agree
--------------
in writing on the terms of the stock warrants which constitute part of the
consideration for Buyer's purchase of the Properties.
12.10 Cooperation by Seller. Seller agrees that it shall provide Buyer
---------------------
promptly upon written request of Buyer copies of historical financial data for
the Properties for the years 1995 and 1996 and 1997 year-to-date information up
to the date of Closing (including monthly and calendar quarter summaries within
those periods), including but not limited to, lease operating statements and
lease operating costs reports (detailed by property with related summaries), and
shall allow Buyer's employees and representatives reasonable access upon prior
27
<PAGE>
written notice to supporting records, invoices and other source documents
insofar as required to complete necessary audits and due diligence procedures,
and shall reasonably cooperate with Buyer to enable Buyer to complete audits and
due diligence on a timely basis, provided, however, that Seller shall provide
only such data as it has in its possession and shall not be obligated to
generate such data in any particular form or format.
ARTICLE 13. PERSONNEL MATTERS
-----------------------------
13.1 Employee Lists. Prior to Closing, Seller will make available to Buyer
--------------
a list of employees who are directly engaged in the operation, maintenance,
administration, measurement, automation and similar functions for the Properties
subject to this Agreement, who are available for immediate employment by Buyer
commencing at Closing. In addition, prior to Closing, Seller will make
available to Buyer a separate list of employees who are engaged in management,
analysis, engineering, supervision, accounting and similar functions who are
available for immediate employment by Buyer commencing at Closing. Buyer shall
not solicit employment of any employees of Seller without obtaining the advance
written permission of Seller. This restriction shall remain in effect for
twenty four (24) months after Closing.
13.2 Offers of Employment. Buyer may (but shall be under no obligation to)
--------------------
make offers of employment effective as of Closing to those employees made
available by Seller, and Buyer shall use reasonable efforts to employ Seller's
designated employees. Such persons shall be covered by all of Buyer's benefit
plans and policies, including without limitation the savings plan, medical plan,
and other benefits and policies, provided, however, that Buyer shall for the
purpose of employment and all such benefits and policies provide for immediate
participation of Seller's employees hired by Buyer and provide to them service
credit for prior service with Seller.
13.3 Severance. Buyer acknowledges that employees hired by Buyer for
---------
positions with pay comparable to what they received from Seller would have been
eligible to receive the severance benefits described in the current 1997 Amoco
Corporation and Participating Affiliates Severance Benefits Plan. Therefore,
Buyer agrees that if any of Seller's employees who are hired by Buyer who did
not receive severance benefits from Seller are then terminated by Buyer within
one (1) year of their date of employment with Buyer, Buyer shall provide to each
such person the same severance benefits they would have received from Seller as
if they had been severed by Seller on the Closing Date. If any of Seller's
employees who are hired by Buyer, voluntarily terminate their employment with
Buyer, Buyer shall not be obligated to pay such persons the severance benefits
described in this provision.
13.4 Additional Agreements. Buyer and Seller agree to cooperate with one
---------------------
another with respect to personnel matters and to cause appropriate
28
<PAGE>
personnel from Buyer and Seller to meet prior to Closing to resolve any issues
(including any issues under the Worker Adjustment and Retraining Notification
Act, 29 U.S.C., Section 2101, et seq. or under any similar provision of any
-------
Laws) and implement the general agreements contained in this Article 13.
ARTICLE 14. HSR FILINGS
-----------------------
14.1 HSR Filings. If compliance with the HSR Act is required in connection
-----------
with the transaction contemplated under this Agreement, as promptly as
practicable and in any event not more than fifteen (15) Business Days following
the date on which the parties have executed this Agreement, both parties will
file with the Federal Trade Commission and the Department of Justice, as
applicable, the notification and report forms required for the transactions
contemplated herein and will as promptly as practicable furnish any supplemental
information which may be reasonably requested in connection therewith. Each
party shall request expedited treatment of such filing. If failure by either
party to obtain timely authorization from the Federal Trade Commission or the
Department of Justice results in the inability of the parties to Close on the
Closing Date, the time for Closing shall automatically be extended until such
date as Closing can occur in compliance with the HSR Act.
ARTICLE 15. CONDITIONS PRECEDENT TO CLOSING
-------------------------------------------
15.1 Conditions Precedent to Seller's Obligation to Close. Seller shall be
----------------------------------------------------
obligated to consummate the sale of the Properties as contemplated by this
Agreement on the Closing Date, provided the following conditions precedent have
been satisfied or have been waived by Seller:
15.1.1 All representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects at and as of
Closing as though such representations and warranties were made at and as
of such time; and
15.1.2 Buyer shall have complied in all material respects with all
obligations and conditions contained in this Agreement to be performed or
complied with by Buyer on or prior to Closing.
15.2 Conditions Precedent to Buyer's Obligation to Close. Buyer shall be
---------------------------------------------------
obligated to consummate the purchase of the Properties as contemplated by this
Agreement on the Closing Date, provided the following conditions precedent have
been satisfied or have been waived by Buyer:
15.2.1 All representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects at and as
29
<PAGE>
of Closing as though such representations and warranties were made at and
as of such time; and
15.2.2 Seller shall have complied in all material respects with all
obligations and conditions contained in this Agreement to be performed or
complied with by Seller on or prior to Closing.
15.3 Conditions Precedent to Obligation of Each Party to Close. The
---------------------------------------------------------
parties shall be obligated to consummate the sale and purchase of the Properties
as contemplated in this Agreement on the Closing Date, provided the following
conditions precedent have been satisfied or have been waived by the applicable
party:
15.3.1 No suit, action or other proceedings shall be pending before
any court or governmental entity in which it is sought by a person or
entity other than the parties hereto or any of their Affiliates, officers,
directors or employees to restrain, enjoin or otherwise prohibit the
consummation of the transactions contemplated by this Agreement, or to
obtain substantial damages in connection with the transaction contemplated
herein, nor shall there be any investigation by a governmental entity
pending which might result in any such suit, action or other proceedings
seeking to restrain, enjoin or otherwise prohibit the consummation of the
transaction contemplated by this Agreement;
15.3.2 If applicable, consummation of the transaction contemplated
herein shall not have been prevented from occurring by (and the required
waiting period, if any, shall have expired under) the HSR Act and the rules
and regulations of the Federal Trade Commission or the Department of
Justice;
15.3.3 All consents and approvals, if any, whether required
contractually or by applicable federal, state, local or tribal Law, or
otherwise necessary for the execution, delivery and performance of this
Agreement (except for consents and approvals of governmental entities or
tribal authorities customarily obtained subsequent to the transfer of
title) shall have been obtained and delivered to Buyer or Seller, as
applicable, by Closing and shall not have been withdrawn or revoked;
15.3.4 With respect to Properties which have not been excluded from
this Agreement because of exercise of a preferential purchase right, if
any, the preferential purchase rights applicable to such Properties shall
have been waived, or the time to elect under such preferential purchase
rights shall have elapsed, prior to Closing; and
30
<PAGE>
ARTICLE 16. THE CLOSING
-----------------------
16.1 Closing. Three (3) Business Days prior to the Closing Date, Seller
-------
shall provide Buyer with a Closing statement setting forth the Purchase Price
adjusted in accordance with the terms of this Agreement. Seller shall
additionally provide Buyer with wiring instructions designating the account or
accounts to which the Closing funds are to be delivered in accordance with
Article 16.3.5. Closing shall be held in Seller's office at the 4th Floor, 550
WestLake Park Boulevard, Houston, Texas 77079, or such other location as
mutually agreed in writing by Seller and Buyer.
16.2 Obligations of Seller at Closing. At Closing, Seller shall
--------------------------------
deliver to Buyer, unless waived by Buyer, the following:
16.2.1 A document conveying all of Seller's right, title and
interests in and to the Properties substantially in the form of the
Assignment and Bill of Sale attached hereto as Exhibit "I". The Assignment
and Bill of Sale shall be executed and acknowledged in four (4) multiple
originals or such greater number as agreed between the parties;
16.2.2 A document conveying all of Seller's right, title and
interests in and to surface interests which are included in the Properties
substantially in the form of the Surface Deed attached hereto as Exhibit
"J". The Surface Deed shall be executed and acknowledged in four (4)
multiple originals or such greater number as agreed between the parties;
16.2.3 A document conveying all of Seller's right, title and
interests in and to the mineral interests which are included in the
Properties substantially in the form of the Mineral Deed attached hereto as
Exhibit "K". The Mineral Deed shall be executed and acknowledged in four
(4) multiple originals or such greater number as agreed between the
parties;
16.2.4 Executed and acknowledged assignments of all of Seller's
right, title and interest in and to federal, state or tribal interests
included in the Properties on approved forms for such purpose;
16.2.5 A Certificate executed by an Attorney-in-Fact of Seller
certifying as to the matters specified in Articles 15.2.1 and 15.2.2 above
substantially in the form of Exhibit "L";
16.2.6 Letters-in-Lieu of division orders or transfer orders
executed by an Attorney-in-Fact of Seller substantially in the form of
Exhibit "M";
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<PAGE>
16.2.7 An Opinion of Counsel executed by an attorney for Seller
substantially in the form of Exhibit "N";
16.2.8 A Non-Foreign Affidavit executed by an Attorney-in-Fact
of Seller substantially in the form of Exhibit "O";
16.2.9 A Transition Agreement executed by an Attorney-in-Fact
of Seller substantially in the form of Exhibit "P";
16.2.10 A License Agreement - SAMS executed by an Attorney-in-
Fact of Seller substantially in the form of Exhibit "Q";
16.2.11 A Sublease Agreement executed by an Attorney-in-Fact of
Seller substantially in the form of Exhibit "R";
16.2.12 A Transitional Automation Agreement in a mutually agreed
form based on Exhibit "H," executed by an Attorney- in- Fact of Seller;
16.2.13 A License Agreement - 3-D Seismic in a mutually agreed
form, executed by an Attorney-in-Fact of Seller, as provided in Article
12.4(b);
16.2.14 An agreement with respect to the stock warrant described
in Article 3.2 in a mutually agreed form, executed by an Attorney-in-Fact
of Seller;
16.2.15 Evidence that all consents and approvals prerequisite
for the sale and conveyance of the Properties (except for consents and
approvals of governmental entities or tribal authorities customarily
obtained subsequent to the transfer of title) have been obtained, as well
as evidence of waiver or lapse of any unexercised preferential purchase
rights applicable to the Properties; and
16.2.16 Such other instruments as necessary to carry out Seller's
obligations under this Agreement.
16.3 Obligations of Buyer at Closing. At Closing, Buyer shall deliver
-------------------------------
to Seller, unless waived by Seller, the following:
16.3.1 The total consideration, including adjusted Purchase Price
(plus Computed Interest on the Purchase Price in accordance with Article
3.1), less the Deposit (plus Computed Interest on the Deposit from the date
----
of receipt by Seller until Closing) and less the Trade Assets' Value (as
----
defined in Article 16.4, if Seller exercises the trade election pursuant to
Article 16.4), by wire transfer in accordance with Article 3 and non-cash
consideration, if any.
32
<PAGE>
16.3.2 The Assignment and Bill of Sale, executed and properly
acknowledged, referred to in Article 16.2.1;
16.3.3 The Surface Deed, executed and properly acknowledged,
referred to in Article 16.2.2;
16.3.4 The Mineral Deed, executed and properly acknowledged,
referred to in Article 16.2.3;
16.3.5 The federal, state and tribal assignments, executed and
properly acknowledged, referred to in Article 16.2.4;
16.3.6 A Certificate executed by an authorized officer or
Attorney-in-Fact of Buyer certifying as to the matters specified in Articles
15.1.1 and 15.1.2 substantially in the form of Exhibit "L";
16.3.7 Letters-in-Lieu of division orders or transfer orders
executed by an authorized officer or Attorney-in-Fact of Buyer substantially in
the form of Exhibit "M";
16.3.8 An Opinion of Counsel executed by an attorney for Buyer
substantially in the form of Exhibit "N";
16.3.9 A Transition Agreement executed by an authorized officer
or Attorney-in-Fact of Buyer substantially in the form of Exhibit "P";
16.3.10 A License Agreement executed by an authorized officer or
Attorney-in-Fact of Buyer substantially in the form of Exhibit "Q";
16.3.11 A Sublease Agreement executed by an authorized officer or
Attorney-in-Fact of Buyer substantially in the form of Exhibit "R";
16.3.12 The Transitional Automation Agreement referenced in
Article 16.2.12, executed by an authorized officer or Attorney- in- Fact of
Buyer;
16.3.13 A License Agreement - 3-D Seismic in a mutually agreed
form, executed by an authorized officer or Attorney-in-Fact of Buyer, as
provided in Article 12.4;
16.3.14 An agreement with respect to the stock warrant described
in Article 3.2 in a mutually agreed form, executed by an authorized officer or
Attorney-in-Fact of Buyer;
33
<PAGE>
16.3.15 Evidence of compliance with all governmental and tribal
requirements, if any, for the posting of plugging or other applicable bonds
relating to the ownership or operation of the Properties; and
16.3.16 Such other instruments as necessary to carry out Buyer's
obligations under this Agreement.
16.4 Possible Trade of Properties. Prior to Closing, Seller may elect to
----------------------------
review certain properties owned by Buyer for a possible trade; such properties
were specified in a letter from Buyer to Seller dated September 15, 1997. Seller
may elect on or before November 1, 1997 to acquire the interest of Buyer in all
such properties for the sum of Fifteen Million Seven Hundred Thousand and no/100
United States Dollars (US$ 15,700,000.00) ("Trade Assets' Value"), and Seller
and Buyer shall agree on the terms for the transfer of such properties,
including execution of a purchase and sale agreement in substantially the same
form as this Agreement. In such event, at the Closing, Buyer shall deliver to
Seller an Assignment and Bill of Sale covering such properties and the Purchase
Price under this Agreement shall be adjusted to reflect a credit to Buyer for
the Trade Assets' Value.
ARTICLE 17. TERMINATION
-----------------------
17.1 Grounds for Termination. This Agreement may be terminated at any time
-----------------------
prior to Closing:
17.1.1 By the mutual written agreement of Seller and Buyer;
17.1.2 By either Seller or Buyer if the consummation of the
transactions contemplated herein would violate any nonappealable final
order, decree or judgment of any court or governmental entity having
appropriate jurisdiction enjoining or awarding substantial damages in
connection with the consummation of the transactions contemplated herein;
or
17.1.3 By Seller if on or before October 15, 1997, any or all of
the following have not been mutually agreed by the parties in writing:
a. The License Agreement - 3-D referred to in Article
12.4;
b. The NGL call language referred to in Article 12.6;
c. The Transitional Automation Agreement referred to in
Article 12.7;
34
<PAGE>
d. Handling of rights and obligations of the agreements
and contracts described in Article 12.8; or
e. The terms of the stock warrants referred to in Article
3.2 and Article 12.9.
17.1.4 Notwithstanding anything contained in this Agreement to
the contrary, Seller may terminate this Agreement, if Closing shall not
have occurred by December 31, 1997, through no breach of this Agreement by
Seller.
17.2 Effect of Termination. If this Agreement is terminated in
---------------------
accordance with Article 17.1, such termination shall be without liability to any
party, except return of the Deposit (plus Computed Interest on the Deposit from
the date of receipt by Seller until termination) and performance of the
obligations provided in Articles 17.3, 17.4, 17.5, 19.3, 19.10, 19.12, 19.14,
19.15, 19.17 and 18.1 (which provisions shall survive termination of this
Agreement). If this Agreement is terminated as a result of Buyer's failure or
refusal to perform an obligation hereunder (including without limitation Closing
on the Closing Date), Seller shall be entitled to retain the Deposit as
liquidated damages (and not as a penalty) to reimburse Seller for its out-of-
pocket fees and expenses incurred in connection with the transactions
contemplated by this Agreement. The liquidated damages referenced above shall be
in addition to and not exclusive of other remedies which may be available at law
or in equity.
17.3 Dispute over Right to Terminate. If there is a dispute between the
-------------------------------
parties over either party's right to terminate this Agreement under Article 17.1
or otherwise, Closing shall not occur, as scheduled. The party which disputes
the other party's right to terminate the Agreement may initiate binding
arbitration proceedings in accordance with Article 18.1 within thirty (30) Days
of the date on which Closing was scheduled to occur and, if arbitration is so
initiated, the dispute will be resolved through such binding arbitration
proceeding. If the party which disputes the termination right does not initiate
arbitration to resolve the dispute within the time period specified hereinabove,
such party shall be deemed to have waived for all purposes its right to object
to or dispute such termination.
17.4 Return of Documents. If this Agreement is terminated prior to
-------------------
Closing, Buyer shall return Seller all books, records, maps, files, papers and
other property in Buyer's possession relating to the transaction contemplated by
this Agreement.
17.5 Confidentiality. Notwithstanding the termination of this
---------------
Agreement or any other provision of this Agreement to the contrary, the terms of
the Confidentiality Agreement dated July 7, 1997, by and between Seller and
Buyer ("Confidentiality Agreement"), shall remain in full force and effect. If
Closing of
35
<PAGE>
the transaction contemplated herein occurs, the Confidentiality Agreement shall
terminate (which termination shall be effective as of the Closing).
ARTICLE 18. ARBITRATION
-----------------------
18.1 Arbitration. UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS
-----------
AGREEMENT, ANY AND ALL DISPUTES ARISING UNDER THE TERMS OF THIS AGREEMENT
("ARBITRABLE DISPUTE") SHALL BE REFERRED TO AND RESOLVED THROUGH THE USE OF
BINDING ARBITRATION USING THREE (3) ARBITRATORS, IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND THE
FEDERAL ARBITRATION ACT (TITLE 9 OF THE UNITED STATES CODE). IF THERE IS ANY
INCONSISTENCY BETWEEN THIS ARTICLE AND ANY STATUTE OR RULES, THE TERMS OF THIS
ARTICLE SHALL CONTROL THE RIGHTS AND OBLIGATIONS OF THE PARTIES. ARBITRATION
SHALL BE INITIATED WITHIN THE APPLICABLE TIME LIMITS SET FORTH IN THIS AGREEMENT
AND NOT THEREAFTER OR IF NO TIME LIMIT IS GIVEN, WITHIN THE TIME PERIOD ALLOWED
BY THE APPLICABLE STATUTE OF LIMITATIONS. ARBITRATION SHALL BE INITIATED BY ONE
(1) PARTY ("CLAIMANT") SERVING WRITTEN NOTICE ON THE OTHER PARTY ("RESPONDENT")
THAT THE CLAIMANT ELECTS TO REFER THE ARBITRABLE DISPUTE TO BINDING ARBITRATION,
AND THAT THE CLAIMANT HAS APPOINTED AN ARBITRATOR, WHO SHALL BE IDENTIFIED IN
SUCH NOTICE. THE RESPONDENT SHALL RESPOND TO THE CLAIMANT WITHIN THIRTY (30)
DAYS AFTER RECEIPT OF CLAIMANT'S NOTICE, IDENTIFYING THE ARBITRATOR RESPONDENT
HAS APPOINTED. THE TWO (2) ARBITRATORS SO CHOSEN SHALL SELECT A THIRD ARBITRATOR
(WHO MUST HAVE NOT LESS THAN TEN (10) YEARS EXPERIENCE AS AN OIL AND GAS LAWYER)
WITHIN THIRTY (30) DAYS AFTER THE SECOND ARBITRATOR HAS BEEN APPOINTED. SELLER
SHALL PAY THE COMPENSATION AND EXPENSES OF THE ARBITRATOR NAMED BY OR FOR IT,
AND BUYER SHALL PAY THE COMPENSATION AND EXPENSES OF THE ARBITRATOR NAMED BY OR
FOR IT. SELLER AND BUYER SHALL EACH PAY ONE-HALF OF THE COMPENSATION AND
EXPENSES OF THE THIRD ARBITRATOR. UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT, ALL ARBITRATORS MUST BE NEUTRAL PARTIES WHO HAVE NEVER BEEN OFFICERS,
DIRECTORS OR EMPLOYEES OF THE PARTIES OR ANY OF THEIR AFFILIATES. ADDITIONALLY,
UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, THE TWO (2) ARBITRATORS
NAMED BY THE PARTIES MUST HAVE NOT LESS THAN TEN (10) YEARS EXPERIENCE IN THE
OIL AND GAS INDUSTRY, AND MUST HAVE A FORMAL EDUCATION IN THE AREA OF DISPUTE
(I.E., ACCOUNTING FOR AN ACCOUNTING DISPUTE, ETC.). THE HEARING SHALL BE
COMMENCED WITHIN THIRTY (30) DAYS AFTER THE SELECTION OF THE THIRD ARBITRATOR.
THE PARTIES AND THE ARBITRATORS SHALL PROCEED DILIGENTLY AND IN GOOD FAITH IN
ORDER THAT THE AWARD SHALL BE MADE AS PROMPTLY AS POSSIBLE. THE DECISION OF THE
ARBITRATORS SHALL BE BINDING ON AND NON-APPEALABLE BY THE PARTIES. THE
ARBITRATORS SHALL NOT HAVE THE AUTHORITY TO GRANT OR AWARD INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES.
ARTICLE 19. MISCELLANEOUS
-------------------------
19.1 Notices. All notices and other communications required, permitted
-------
36
<PAGE>
or desired to be given hereunder must be in writing and sent by: (a) U.S. mail,
properly addressed as shown below, and with all postage and other charges fully
prepaid, (b) hand delivery, or (c) facsimile transmission. Date of service by
mail and hand delivery is the date on which such notice is received by the
addressee and by facsimile is the date sent (as evidenced by fax machine
confirmation of receipt), or if such date is not on a Business Day, then on the
next date which is a Business Day. Each party may change its address by
notifying the other party in writing.
<TABLE>
<CAPTION>
<S> <C>
If to Seller Amoco Production Company
by mail: P.O. Box 3092
Houston, Texas 77253-3092
Attn: General Manager of Business Development
AEGNA Acquisitions and Divestments
If to Seller by Amoco Production Company
hand delivery: 550 WestLake Park Boulevard, 4th floor
Houston, Texas 77079
Attn: General Manager of Business Development
AEGNA Acquisitions and Divestments
If to Seller Amoco Production Company
by facsimile: Number: 281-366-7544
Attn: General Manager of Business Development
AEGNA Acquisitions and Divestments
If to Buyer Cross Timbers Oil Company
by mail: 810 Houston Street, Suite 2000
Fort Worth, Texas 76102
Attn: Mr. Vaughn O. Vennerberg, II
If to Buyer by Cross Timbers Oil Company
hand delivery: 810 Houston Street, Suite 2000
Fort Worth, Texas 76102
Attn: Mr. Vaughn O. Vennerberg, II
If to Buyer Cross Timbers Oil Company
by facsimile: Number: 817-882-7224
Attn: Mr. Vaughn O. Vennerberg, II
</TABLE>
19.2 Conveyance Costs. Buyer shall be solely responsible for filing and
----------------
recording documents related to the transfer of the Properties from Seller to
Buyer and for all costs and fees associated therewith, including, without
limitation, filing the assignment of the Properties with appropriate federal,
state, local and tribal authorities as required by applicable Law. As soon as
practicable after recording or filing, Buyer shall furnish Seller with all
recording data and evidence of all required filings.
37
<PAGE>
19.3 Brokers' Fees. Buyer has not retained any brokers, agents or
-------------
finders and none are affiliated with Buyer or authorized to act on behalf of
Buyer in this matter. BUYER AGREES TO RELEASE, PROTECT, INDEMNIFY, DEFEND AND
HOLD SELLER, ITS OFFICERS, AGENTS, EMPLOYEES AND AFFILIATES HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS WITH RESPECT TO ANY COMMISSIONS, FINDERS' FEES OR
OTHER REMUNERATION DUE TO ANY BROKER, AGENT OR FINDER CLAIMING BY, THROUGH OR
UNDER BUYER.
19.4 Records. Within thirty (30) Days after termination of the
-------
Transition Agreement (except as provided below), Seller shall furnish to Buyer
all Records which are maintained by Seller; provided however, Seller shall be
entitled to retain: (a) copies of any or all such Records, (b) originals of any
Records required in connection with litigation or other proceedings pending or
threatened against Seller and associated with the Properties, (c) originals of
any Records required in connection with title or environmental due diligence,
(d) originals of any Records required in connection with the Final Accounting
Settlement, (e) originals of any Records required in connection with any
transition activities, and/or (f) originals of any Records associated with any
retained properties or interests; provided that in any case in which Seller
retains original Records, Seller shall provide Buyer with copies of such
original Records to the extent pertaining to the Properties, at Seller's
expense, within thirty (30) Days after termination of the Transition Agreement.
Any and all original Records retained by Seller shall be furnished to Buyer
within thirty (30) Days after Seller's reasonable need for said Records ceases.
Buyer agrees to maintain the Records received from Seller in accordance herewith
for a period of seven (7) years after the Closing and shall afford Seller full
access to the Records as reasonably requested by Seller. If Buyer desires to
destroy the Records, or any portion thereof, it shall notify Seller prior to
such destruction, and provide Seller the opportunity to take possession of the
same.
19.5 Further Assurances. From and after Closing, at the request of
------------------
Seller but without further consideration, Buyer will execute and deliver or use
reasonable efforts to cause to be executed and delivered such other instruments
of conveyance and take such other actions as Seller reasonably may request to
more effectively put Seller in possession of any property which was not intended
by the parties or should not have been conveyed by Buyer (including without
limitation, reassignment from Buyer to Seller of any Properties which were
conveyed in violation of a valid preferential right to purchase or consent to
assignment). From and after Closing, at the request of Buyer but without further
consideration, Seller shall execute and deliver or use reasonable efforts to
cause to be executed and delivered such other instruments of conveyance and take
such other actions as Buyer reasonably may request to more effectively put Buyer
in possession of the Properties. If any of the Properties are incorrectly
described, the description shall be corrected upon proof of the proper
description. From and after Closing, Buyer and Seller shall each execute,
acknowledge and deliver to the other such further instruments and take such
38
<PAGE>
further action as may be reasonably requested in order to more effectively
assure to the other the full beneficial use and enjoyment of the Properties and
otherwise to accomplish the purposes of the transaction contemplated by this
Agreement.
19.6 Survival of Representations and Warranties. THE REPRESENTATIONS
------------------------------------------
AND WARRANTIES CONTAINED IN ARTICLE 10 OF THIS AGREEMENT SHALL TERMINATE FOUR
(4) YEARS AFTER CLOSING. ALL OTHER REPRESENTATIONS, WARRANTIES, INDEMNITIES,
COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE CLOSING
INDEFINITELY. THE PARTIES HAVE MADE NO REPRESENTATIONS OR WARRANTIES, EXCEPT
THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
19.7 Amendments and Severability. No amendments or other changes to
---------------------------
this Agreement shall be effective or binding on either of the parties unless the
same shall be in writing and signed by both Seller and Buyer. The invalidity of
any one or more provisions of this Agreement shall not affect the validity of
this Agreement as a whole, and in case of any such invalidity, this Agreement
shall be construed as if the invalid provision had not been included herein.
19.8 Successors and Assigns. This Agreement shall not be assigned,
----------------------
either in whole or in part, without the express written consent of the non-
assigning party. The terms, covenants and conditions contained in this Agreement
shall be binding upon and shall inure to the benefit of Seller and Buyer and
their respective successors and assigns, and such terms, covenants and
conditions shall be covenants running with the land and with each subsequent
transfer or assignment of the Properties.
19.9 Headings. The titles and headings set forth in this Agreement have
--------
been included solely for ease of reference and shall not be considered in the
interpretation or construction of this Agreement.
19.10 Governing Law. THIS AGREEMENT (INCLUDING ADMINISTRATION OF THE
-------------
BINDING ARBITRATION PROVISION SET FORTH IN ARTICLE 18.1) SHALL BE GOVERNED BY
AND CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CHOICE OF LAW
RULES WHICH MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
19.11 No Partnership Created. It is not the purpose or intention of this
----------------------
Agreement to create (and it shall not be construed as creating) a joint venture,
partnership or any type of association, and the parties are not authorized to
act as agent or principal for each other with respect to any matter related
hereto.
19.12 Public Announcements. Neither Seller nor Buyer (including any of
--------------------
their Affiliates in either case) shall issue a public statement or press release
with respect to the transaction contemplated herein (including the price and
other terms) without the prior written consent of the other party, except as
required by
39
<PAGE>
Law or listing agreement with a national security exchange and then only after
prior consultation with the other party.
19.13 No Third Party Beneficiaries. Nothing contained in this Agreement
----------------------------
shall entitle anyone other than Seller or Buyer or their authorized successors
and assigns to any claim, cause of action, remedy or right of any kind
whatsoever.
19.14 Waiver of Consumer Rights. AS PARTIAL CONSIDERATION FOR THE
-------------------------
PARTIES AGREEING TO ENTER INTO THIS AGREEMENT, THE PARTIES EACH CAN AND DO
EXPRESSLY WAIVE THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER
PROTECTION ACT, ARTICLE 17.41 ET SEQ., TEXAS BUSINESS AND COMMERCE CODE, A LAW
THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTION, AND ALL OTHER CONSUMER
PROTECTION LAWS OF THE STATE OF TEXAS, OR ANY OTHER STATE, APPLICABLE TO THIS
TRANSACTION THAT MAY BE WAIVED BY THE PARTIES. IT IS NOT THE INTENT OF THE
PARTIES TO WAIVE AND THE PARTIES SHALL NOT WAIVE ANY APPLICABLE LAW OR PROVISION
THEREOF WHICH IS PROHIBITED BY LAW FROM BEING WAIVED. THE PARTIES HERETO
REPRESENT THAT THEY HAVE HAD AN ADEQUATE OPPORTUNITY TO REVIEW THE PRECEDING
WAIVER PROVISION, INCLUDING THE OPPORTUNITY TO SUBMIT THE SAME TO LEGAL COUNSEL
FOR REVIEW AND COMMENT AND AFTER CONSULTATION WITH AN ATTORNEY OF THEIR OWN
SELECTION VOLUNTARILY CONSENT TO THIS WAIVER, AND UNDERSTAND THE RIGHTS BEING
WAIVED HEREIN.
19.15 Not to be Construed Against Drafter. THE PARTIES ACKNOWLEDGE THAT
-----------------------------------
THEY HAVE HAD AN ADEQUATE OPPORTUNITY TO REVIEW EACH AND EVERY PROVISION
CONTAINED IN THIS AGREEMENT AND TO SUBMIT THE SAME TO LEGAL COUNSEL FOR REVIEW
AND COMMENT, INCLUDING WITHOUT LIMITATION THE WAIVERS AND INDEMNITIES IN
ARTICLES 4.3, 5.3, 8, 9, 19.3, 19.6 AND 19.14. BASED ON SAID REVIEW AND
CONSULTATION, THE PARTIES AGREE WITH EACH AND EVERY TERM CONTAINED IN THIS
AGREEMENT. BASED ON THE FOREGOING, THE PARTIES AGREE THAT THE RULE OF
CONSTRUCTION THAT A CONTRACT BE CONSTRUED AGAINST THE DRAFTER, IF ANY, SHALL NOT
BE APPLIED IN THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT.
19.16 Tax Deferred Exchange Election. Either party may elect to
------------------------------
structure the conveyance of the Properties as part of an exchange under Article
1031 of the Internal Revenue Code of 1986, as amended. The parties agree to
execute all documents, conveyances or other instruments necessary to effectuate
an Article 1031 exchange.
19.17 Conspicuousness of Provisions. THE PARTIES ACKNOWLEDGE THAT THE
-----------------------------
PROVISIONS CONTAINED IN THIS AGREEMENT THAT ARE SET OUT IN "BOLD" SATISFY THE
REQUIREMENT OF THE EXPRESS NEGLIGENCE RULE AND ANY OTHER REQUIREMENT AT LAW OR
IN EQUITY THAT PROVISIONS CONTAINED IN A CONTRACT BE CONSPICUOUSLY MARKED OR
HIGHLIGHTED.
40
<PAGE>
19.18 Execution in Counterparts. This Agreement may be executed in
-------------------------
counterparts, which shall when taken together constitute one (1) valid and
binding agreement.
19.19 Entire Agreement. This Agreement and the Confidentiality Agreement
----------------
supersede all prior and contemporaneous negotiations, understandings, letters of
intent and agreements (whether oral or written) between the parties relating to
the Properties and constitute the entire understanding and agreement between the
parties with respect to the sale and purchase of the Properties.
The parties have executed this Agreement on the day and year first set
forth above .
AMOCO PRODUCTION COMPANY
By: Lon O Buehner
--------------------------------------
Name: Lon O. Buehner
Title: Attorney-in-Fact
CROSS TIMBERS OIL COMPANY
By: Vaughn O Vennerberg
-------------------------------------
Name: Vaughn O. Vennerberg, II
Title: Senior Vice President - Land
41
<PAGE>
EXHIBIT 99.1
________________________________________________________________________________
$600,000,000
REVOLVING CREDIT AGREEMENT
among
CROSS TIMBERS OIL COMPANY,
as Borrower
The Several Banks
from Time to Time Parties Hereto
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
and
NATIONSBANK OF TEXAS, N.A.,
as Syndication Agent
Dated as of November 21, 1997
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
---------
DEFINITION OF TERMS
-------------------
ARTICLE 2
---------
THE REVOLVING CREDIT LOANS
--------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
2.01. Revolving Loan Commitments.........................................23
--------------------------
2.02. Manner of Borrowing................................................24
-------------------
2.03. Interest Rate......................................................27
-------------
2.04. Borrowing Base Increase Fee........................................29
---------------------------
2.05. Up-Front Fees......................................................29
-------------
2.06. Maximum Number of Eurodollar Borrowings............................29
---------------------------------------
</TABLE>
ARTICLE 3
---------
GUARANTY
--------
<TABLE>
<CAPTION>
<S> <C> <C>
3.01. Guaranty...........................................................29
--------
</TABLE>
ARTICLE 4
---------
NOTES AND NOTE PAYMENTS
-----------------------
<TABLE>
<CAPTION>
<S> <C> <C>
4.01. Notes..............................................................29
-----
4.02. Prepayments........................................................30
-----------
4.03. Payment of Interest on the Notes...................................30
--------------------------------
4.04. Calculation of Interest Rates......................................31
-----------------------------
4.05. Manner and Application of Payments.................................31
----------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
4.06. Pro Rata Treatment..................................................32
------------------
4.07. Lending Office......................................................32
--------------
4.08. Taxes...............................................................32
-----
4.09. Sharing of Payments, etc............................................33
------------------------
</TABLE>
ARTICLE 5
---------
BORROWING BASE
--------------
<TABLE>
<CAPTION>
<S> <C> <C>
5.01 Borrowing Base Tests...............................................34
--------------------
5.02 Initial Borrowing Base.............................................36
----------------------
5.03 Subsequent Determination of Borrowing Base.........................36
------------------------------------------
5.04 Special Determination of Borrowing Base............................38
---------------------------------------
5.05. Interim Sales of Mineral Properties................................40
-----------------------------------
5.06. Borrowing Base Deficiency..........................................40
-------------------------
5.07. Reserve Report and Gas Report Matters..............................43
-------------------------------------
</TABLE>
ARTICLE 6
---------
REPRESENTATIONS AND WARRANTIES
------------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
6.01. Organization and Good Standing.....................................44
------------------------------
6.02. Authorization and Power............................................44
-----------------------
6.03. No Conflicts or Consents...........................................45
------------------------
6.04. Enforceable Obligations............................................45
-----------------------
6.05. No Liens...........................................................45
--------
6.06. Financial Condition................................................45
-------------------
6.07. Full Disclosure....................................................46
---------------
</TABLE>
-ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
6.08. No Default.........................................................46
----------
6.09. Material Agreements................................................46
-------------------
6.10. No Litigation......................................................46
-------------
6.11. Burdensome Contracts...............................................46
--------------------
6.12. Estimated Oil and Gas Reserves.....................................46
------------------------------
6.13. Use of Proceeds; Margin Stock......................................46
-----------------------------
6.14. Taxes..............................................................47
-----
6.15. Principal Office, Etc..............................................47
---------------------
6.16. ERISA..............................................................47
-----
6.17. Compliance with Law................................................47
-------------------
6.18. Government Regulation..............................................47
---------------------
6.19. Insider............................................................48
-------
6.20. No Subsidiaries....................................................48
---------------
6.21. Environmental Matters..............................................48
---------------------
6.22. Title to Properties................................................49
-------------------
6.23. Gas Marketing Subsidiaries' Obligations............................49
---------------------------------------
6.24. Representations and Warranties.....................................49
------------------------------
6.25. Survival of Representations, Etc...................................50
--------------------------------
</TABLE>
ARTICLE 7
---------
CONDITIONS PRECEDENT
--------------------
<TABLE>
<CAPTION>
<S> <C> <C>
7.01. Commitment.........................................................50
----------
7.02. All Advances.......................................................51
------------
7.02. Amoco Acquisition..................................................52
-----------------
</TABLE>
-iii
<PAGE>
ARTICLE 8
---------
AFFIRMATIVE COVENANTS
---------------------
<TABLE>
<CAPTION>
<S> <C> <C>
8.01. Financial Statements, Reports and Documents........................52
-------------------------------------------
8.02. Payment of Taxes and Other Indebtedness............................55
---------------------------------------
8.03. Maintenance of Existence and Rights; Conduct of Business...........55
---------------------------------------------------------
8.04. Notice of Default..................................................55
-----------------
8.05. Other Notices......................................................55
-------------
8.06. Compliance with Loan Papers........................................55
---------------------------
8.07. Compliance with Material Agreements................................55
-----------------------------------
8.08. Operations and Properties..........................................56
-------------------------
8.09. Books and Records; Access..........................................56
-------------------------
8.10. Compliance with Law................................................56
-------------------
8.11. Leases.............................................................56
------
8.12. Development and Maintenance........................................56
---------------------------
8.13. Insurance..........................................................56
---------
8.14. Authorization and Approvals........................................57
---------------------------
8.15. Experienced Management.............................................57
----------------------
8.16. ERISA Compliance...................................................57
----------------
8.17. Further Assurances.................................................57
------------------
8.18. Environmental......................................................57
-------------
8.19. Pledge of Properties...............................................58
--------------------
8.20. Gas Marketing Subsidiaries Guaranties..............................58
-------------------------------------
8.21. Guaranty of Cross Timbers Trading Company..........................59
-----------------------------------------
</TABLE>
-iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
8.22 Title Materials Covering Amoco Properties..........................59
-----------------------------------------
8.23 Environmental Assessment Covering Amoco Properties.................59
--------------------------------------------------
</TABLE>
ARTICLE 9
---------
NEGATIVE COVENANTS
------------------
<TABLE>
<CAPTION>
<S> <C> <C>
9.01. Limitation on Indebtedness.........................................59
--------------------------
9.02. Negative Pledge....................................................60
---------------
9.03. Dividends and Distributions........................................60
---------------------------
9.04. Limitation on Investments..........................................60
-------------------------
9.05. Alteration of Material Agreements..................................61
---------------------------------
9.06. Certain Transactions...............................................61
--------------------
9.07. Limitation on Sale of Properties...................................61
--------------------------------
9.08. Name, Fiscal Year and Accounting Method............................62
---------------------------------------
9.09. Current Ratio......................................................62
-------------
9.10. Liquidation, Mergers, Consolidations and Dispositions of
--------------------------------------------------------
Substantial Assets.................................................62
------------------
9.11. Lines of Business..................................................63
-----------------
9.12. No Amendments......................................................63
-------------
9.13. Purchase of Substantial Assets.....................................63
------------------------------
9.14. Guaranties.........................................................63
----------
9.15. Leases; Sale and Leaseback.........................................63
--------------------------
9.16. Restriction on Loans...............................................63
--------------------
9.17 Speculative Trading................................................64
-------------------
9.18 Hedging Agreements.................................................64
------------------
9.19. Prepayment or Redemption of Subordinated Indebtedness..............64
-----------------------------------------------------
</TABLE>
-v
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
9.20 Payments Respecting Permitted Margin Debt..........................64
-----------------------------------------
9.21 Strict Compliance..................................................65
-----------------
</TABLE>
ARTICLE 10
----------
EVENTS OF DEFAULT
-----------------
<TABLE>
<CAPTION>
<S> <C> <C>
10.01. Events of Default..................................................65
-----------------
10.02. Remedies Upon Event of Default.....................................67
------------------------------
10.03. Performance by Banks...............................................68
--------------------
</TABLE>
ARTICLE 11
----------
AGENCY PROVISIONS
-----------------
<TABLE>
<CAPTION>
<S> <C> <C>
11.01. Appointment and Authorization......................................68
-----------------------------
11.02. Consultation with Counsel..........................................69
-------------------------
11.03. Documents..........................................................69
---------
11.04. Resignation........................................................69
-----------
11.05. Responsibility.....................................................69
--------------
11.06. Notices of Event of Default........................................70
---------------------------
11.07. Independent Investigation..........................................70
-------------------------
11.08. Indemnification....................................................70
---------------
11.09. Forwarding of Information to Banks.................................71
----------------------------------
11.10. Benefit of Article 11..............................................71
---------------------
</TABLE>
-vi
<PAGE>
ARTICLE 12
----------
SPECIAL PROVISIONS FOR EURODOLLAR AND CD LOANS; YIELD PROTECTION
----------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
12.01. Inadequacy of Pricing..............................................71
---------------------
12.02. Illegality.........................................................72
----------
12.03. Increased Costs for Loans..........................................72
-------------------------
12.04. Effect on Other Loans..............................................73
---------------------
12.05. Payments Not At End of Interest Period.............................73
--------------------------------------
12.06. Capital Adequacy...................................................73
----------------
</TABLE>
ARTICLE 13
----------
MISCELLANEOUS
-------------
<TABLE>
<CAPTION>
<S> <C> <C>
13.01. Modification.......................................................74
------------
13.02. Accounting Terms and Reports.......................................74
----------------------------
13.03. Waiver.............................................................75
------
13.04. Payment of Expenses; Documentary Taxes; Indemnification............75
-------------------------------------------------------
13.05. Notices............................................................76
-------
13.06. Governing Law......................................................76
-------------
13.07. Choice of Forum; Consent to Service of Process and Jurisdiction;
----------------------------------------------------------------
Waiver of Rights to Jury Trial.....................................77
------------------------------
13.08. Invalid Provisions.................................................77
------------------
13.09. Maximum Interest Rate..............................................78
---------------------
13.10. Offset.............................................................78
------
13.11. Chapter 346........................................................79
-----------
13.12. Entirety...........................................................79
--------
</TABLE>
-vii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
13.13. Headings...........................................................79
--------
13.14. Survival...........................................................79
--------
13.15. Successors and Assigns.............................................79
----------------------
13.16. Foreign Banks, Participants, and Assignees.........................80
------------------------------------------
13.17. No Third Party Beneficiary.........................................81
--------------------------
13.18. Acknowledgements...................................................81
----------------
13.19. Multiple Counterparts..............................................82
---------------------
13.20. Notice and Acknowledgment of No Oral Agreements....................82
-----------------------------------------------
</TABLE>
-viii
<PAGE>
REVOLVING CREDIT AGREEMENT
--------------------------
This REVOLVING CREDIT AGREEMENT (the "Loan Agreement") is entered into as
of this 21st day of November, 1997 by and among CROSS TIMBERS OIL COMPANY, a
Delaware corporation (hereinafter called "Company"), each Bank which from time
to time become parties hereto, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent for Banks (herein the "Administrative Agent") and
NATIONSBANK OF TEXAS, N.A. as Syndication Agent for Banks (herein the
"Syndication Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Company, Agents, and certain Banks parties hereto have entered
into the Prior Loan Agreement (as defined herein); and
WHEREAS, Company desires to increase the credit available under the Prior
Loan Agreement and to amend and restate the Prior Loan Agreement in its entirety
by entering into this Loan Agreement; and
WHEREAS, Company and Banks are willing to increase the credit available
under the Prior Loan Agreement and to amend and restate the Prior Loan Agreement
in its entirety upon the terms and subject to the conditions set forth in this
Loan Agreement.
WHEREAS, J. P. Morgan Securities, Inc. and NationsBanc Montgomery
Securities, Inc., have acted in the capacity of Arrangers for Company and Banks
in connection with the consummation of the transactions contemplated by this
Loan Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, the parties hereto do hereby agree as
follows:
ARTICLE 1
---------
DEFINITION OF TERMS
-------------------
For the purposes of this Loan Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings assigned to
them in this Article 1 or in the section or recital referred to below:
"Adjusted PV Borrowing Base Test": Section 5.01(a)(ii).
-------------------------------
"Adjusted CD Rate" shall, with respect to each Interest Period, mean on any
----------------
day thereof the quotient of (a) the CD Quoted Rate with respect to such Interest
Period divided by (b) the remainder of 1.00 minus the CD Reserve Requirement in
---------- -----
effect on such day.
<PAGE>
"Adjusted InterBank Rate" shall, with respect to each Interest Period, mean
-----------------------
on any day thereof the quotient of (a) the InterBank Offered Rate with respect
to such Interest Period, divided by (b) the remainder of 1.00 minus the
---------- -----
Eurodollar Reserve Requirement in effect on such day.
"Administrative Agent": The preamble, and as otherwise provided in Article
--------------------
11.
"Advance": Section 2.01.
-------
"Affected Borrowings": Section 12.01.
-------------------
"Affiliate" of any Person shall mean any Person which, directly or
---------
indirectly, controls, is controlled by, or is under common control with, such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the beneficial or record ownership
of a majority of the outstanding voting securities or equity interests or by
contract or otherwise.
"Agent" or "Agents": Administrative Agent and Syndication Agent, and as
----- ------
otherwise provided in Article 11.
"Amoco Acquisition" shall mean the acquisition transaction to be
-----------------
consummated pursuant to that certain Purchase and Sale Agreement dated September
29, 1997 between Amoco Production Company, as Seller, and Company, as Buyer.
"Amoco Properties" shall mean the oil and gas properties to be acquired by
----------------
Company upon closing of the Amoco Acquisition.
"Applicable Margin" shall mean, at such times and from time to time as the
-----------------
Borrowing Base Percentage then in effect is within one of the following ranges
or, during the period from the closing date of the Amoco Acquisition to December
31, 1998, the Total Outstandings are less than or greater than the Threshold
Amount for the applicable range, as the case may be, with respect to any
Borrowing, the percentage per annum set forth below opposite the relevant type
of Borrowing and the relevant range.
-2-
<PAGE>
Type of Borrowing Applicable Margin
----------------- -----------------
A. Floating Base Borrowing:
-----------------------
Range 1: The Borrowing Base Percentage
-------
is less than or equal to 75% 0.00%
Range 2: The Borrowing Base Percentage is
-------
greater than 75% and (for the period
from the closing date of the Amoco
Acquisition to December 31, 1998)
the Total Outstandings are less than
the Threshold Amount 1/4%
Range 3: During the period from the closing
-------
date of the Amoco Acquisition to
December 31, 1998, the Total
Outstandings are equal to or greater
than the Threshold Amount 3/8%
B. Eurodollar Borrowing:
--------------------
Range 1: The Borrowing Base Percentage is
-------
less than or equal to 50% 3/4%
Range 2: The Borrowing Base Percentage is
-------
greater than 50% but less than or equal
to 75% 1%
Range 3: The Borrowing Base Percentage is
-------
greater than 75% and (for the period
from the closing date of the Amoco
Acquisition to December 31, 1998) the
Total Outstandings are less than the
Threshold Amount 1 1/4%
Range 4: During the period from the closing
-------
date of the Amoco Acquisition to
December 31, 1998, the Total
Outstandings are equal to or greater
than the Threshold Amount 1 3/8%
-3-
<PAGE>
C. CD Borrowing:
------------
Range 1: The Borrowing Base Percentage is less
-------
than or equal to 50% 7/8%
Range 2: The Borrowing Base Percentage is
-------
greater than 50% but less than or equal
to 75% 1 1/8%
Range 3: The Borrowing Base Percentage is
-------
greater than 75% and (for the period from
the closing date of the Amoco
Acquisition to December 31, 1998) the
Total Outstandings are less than the
Threshold Amount 1 3/8%
Range 4: During the period from the closing
------- date of the Amoco Acquisition to
December 31, 1998, the Total
Outstandings are equal to or greater
than the Threshold Amount 1 1/2%
provided, however, that with respect to any Eurodollar Borrowing or CD Borrowing
and except as provided in Section 2.03(d) below, if the Applicable Margin for
such Borrowing is established while the Borrowing Base Percentage is within one
of the ranges set forth above, but the Borrowing Base Percentage subsequently
should become within one of the other ranges set forth above during the Interest
Period in effect for such Borrowing, then (i) if, as of the Business Day (or
Eurodollar Business Day) that the Borrowing Base Percentage changes, 30 days or
more remain until the termination of such Interest Period, then the Applicable
Margin for such Borrowing shall automatically change on such Business Day (or
Eurodollar Business Day) without prior notice to Company to the Applicable
Margin for the actual Borrowing Base Percentage then in effect or (ii) if, as of
the Business Day (or Eurodollar Business Day) that the Borrowing Base Percentage
changes, less than 30 days remain until the termination of such Interest Period,
then the Applicable Margin then in effect shall not change until the termination
of such Interest Period.
"April 1997 Indenture" shall mean that certain Indenture dated as of April
--------------------
1, 1997, from Company to The Bank of New York, Trustee, pursuant to which the
securities and notes evidencing $125,000,000 of the Subordinated Indebtedness
are issued.
"Arrangers": J. P. Morgan Securities, Inc. and NationsBanc Montgomery
---------
Securities, Inc.
"Assignee": Section 13.15.
--------
-4-
<PAGE>
"Assumed Amortization Schedule": Section 5.01(a)(iii).
-----------------------------
"Bank" or "Banks": The Banks identified on the signature pages hereof, and
---- -----
each Assignee which becomes a Bank pursuant to Section 13.15 and their
respective successors.
"Base Dedicated Percentage": Section 5.06(a).
-------------------------
"Beneficial Owner" shall be determined in accordance with Rules 13d-3 and
----------------
13d-5 promulgated by the Security and Exchange Commission under the Securities
Exchange Act of 1934 as it may be amended from time to time, or any successor
provision thereto, except that a Person shall be deemed to have "beneficial
ownership" of all shares that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time.
"Borrowing": Section 2.01.
---------
"Borrowing Base": Section 5.01.
--------------
"Borrowing Base Assets": Section 5.01(a)(i).
---------------------
"Borrowing Base Deficiency": Section 5.06(a).
-------------------------
"Borrowing Base Deficiency Certificate": Section 5.06(a).
-------------------------------------
"Borrowing Base Percentage" shall mean, for the purpose of determining the
-------------------------
applicable commitment fee under Section 2.01(c) hereof or the interest rate
under Section 2.03 hereof, the Total Outstandings as a percentage of the
Borrowing Base then in effect.
"Borrowing Base Tests" shall mean, collectively, the PV Borrowing Base
--------------------
Test, the Adjusted PV Borrowing Base Test and the Cash Flow Borrowing Base Test.
"Business Day" shall mean any day except a Saturday, Sunday or other day on
------------
which commercial banks in New York City or Fort Worth, Texas are authorized by
law to close.
"Capital Lease" shall mean, as of any date, any lease of property, real or
-------------
personal, which would be capitalized on a balance sheet of the lessee prepared
as of such date, in accordance with Generally Accepted Accounting Principles,
together with any other lease by such lessee which is in substance a financing
lease, including without limitation, any lease under which (i) such lessee has
or will have an option to purchase the property subject thereto at a nominal
amount or an amount less than a reasonable estimate of the fair market value of
such property as of the date such lease is entered into or (ii) the term of the
lease approximates or exceeds the expected useful life of the property leased
thereunder.
"Capital Stock" shall mean any and all shares, interests, participations,
-------------
or equivalents (however designated) of capital stock of a corporation and any
and all equivalent ownership
-5-
<PAGE>
interests in a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"Cash Flow" shall mean for any period, (i) the gross cash operating
---------
revenues properly allocable to Proved Reserves attributable to the Mineral
Properties (except that at least eighty-five percent (85%) of such Proved
Reserves shall consist of Proved Developed Producing Reserves) and operations of
the Gas Marketing Subsidiaries which are not subject to any Lien except
Permitted Liens, and (ii) the cash dividends and distributions projected to be
paid to Company or any Subsidiary on account of its CRT Units that are not
subject to any Lien (except as provided below), less the following cash items:
----
royalties, operating costs (including, with respect to the Gas Marketing
Subsidiaries, any lease or rental payments respecting the Lease Agreements),
severance and wellhead taxes, general and administrative expenses and current
income and other taxes, if any, properly allocable to such period, cash capital
expenditures made during such period, to the extent such items are properly
allocable to the Mineral Properties or such Gas Marketing Subsidiaries, and the
scheduled installments of interest due on the Loan (based upon the Projected
Interest Rate), the outstanding Permitted Margin Debt, and the Subordinated
Indebtedness during such period. If any CRT Units are pledged to secure
outstanding Permitted Margin Debt, only the dividends and distributions
allocable to that portion of the CRT Units that have a value in excess of the
publicly traded value of the CRT Units that are necessary under any collateral
maintenance provisions to secure the Permitted Margin Debt shall be utilized in
determining the Cash Flow attributable to the CRT Units. Cash Flow shall be
determined for the purpose of establishing the Cash Flow Borrowing Base Test
according to Section 5.01(a)(iii).
"Cash Flow Borrowing Base Test": Section 5.01(a)(iii).
-----------------------------
"Cash Flow Projections": Section 5.03.
---------------------
"CD Advance" shall mean any principal amount under a Note with respect to
----------
which the interest rate is calculated by reference to the Adjusted CD Rate for a
particular Interest Period.
"CD Borrowing" shall mean any Borrowing composed of CD Advances.
------------
"CD Quoted Rate" shall mean, with respect to any Interest Period, the rate
--------------
of interest determined by Administrative Agent to be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100 of 1%) of the prevailing
rates per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each Reference Bank of its certificates of deposit in an amount
comparable to the unpaid principal amount of the CD Advance of such Reference
Bank to which such Interest Period applies and having a maturity comparable to
such Interest Period.
"CD Reserve Requirement" shall, on any day, mean that percentage (expressed
----------------------
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including
-6-
<PAGE>
without limitation any basic, supplemental or emergency reserves) for a member
bank of the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of new non-personal time deposits in dollars in New
York City having a maturity comparable to the related Interest Period and in an
amount of $100,000 or more. The Adjusted CD Rate shall be adjusted automatically
on and as of the effective date of any changes in the CD Reserve Requirement.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation,
------
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, as amended.
"Change in Control" shall mean an occurrence where (a) any Person, or any
-----------------
Persons acting together in a manner which would constitute a "group" (a "Group")
for purposes of Section 13(d) of the Securities Exchange Act of 1934 as it may
be amended from time to time, or any successor provision thereto, together with
any Affiliates thereof, (i) become the Beneficial Owners of capital stock of the
Company through a purchase, merger or other acquisition transaction, entitling
such Person or Persons and its or their Affiliates to exercise more than 50% of
the total voting power of all classes of the Company's capital stock entitled to
vote generally in the election of directors or (ii) shall succeed in having
sufficient of its or their nominees who are not supported by a majority of the
then current board of directors of the Company elected to the board of directors
of the Company such that such nominees, when added to any existing directors
remaining on the board of directors of the Company after such election who are
Affiliates of or acting in concert with any such Persons, shall constitute a
majority of the board of directors of the Company, (b) a plan is adopted
relating to the liquidation or dissolution of the Company or (c) the Company
shall consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person other
than a Subsidiary, or any other Person shall consolidate with or merge into the
Company (other than, in the case of this clause (c), pursuant to any
consolidation or merger where Persons who are Beneficial Owners of the Company's
capital stock entitled to vote generally in the election of directors
immediately prior thereto become the Beneficial Owners of shares of capital
stock of the surviving corporation entitling such Persons to exercise more than
50% of the total voting power of all classes of such surviving corporation's
capital stock entitled to vote generally in the election of directors or persons
holding similar positions).
"Closing Date" shall mean the date of this Loan Agreement as set forth in
------------
the preamble hereof.
"Collateral Documents": Section 8.19.
--------------------
"Commitment" shall mean at any time Banks' commitment to make the Loan and
----------
any Borrowing thereunder available to Company in an aggregate amount at any
time not to exceed the lesser of (i) the Borrowing Base then in effect or
(ii) the Facility Amount. With respect to each Bank, its Commitment shall never
exceed its Percentage of the lesser of (i) the Borrowing Base then in effect or
(ii) the Facility Amount. The amount of each Bank's Commitment may be terminated
or reduced from time to time in accordance with the provisions hereof. The
initial
-8-
<PAGE>
Commitment is $162,000,000, and, upon closing of the Amoco Acquisition, the
Commitment shall increase to (a) $410,000,000 if the Trade Properties are not
conveyed to Amoco Production Company or (b) $400,000,000 if the Trade Properties
are conveyed to Amoco Production Company.
"Company": The preamble.
-------
"Consequential Loss" shall, with respect to Company's payment of all or any
------------------
portion of the then-outstanding principal amount of a Bank's Eurodollar Advance
or CD Advance on a day other than the last day of the Interest Period related
thereto, mean any loss, cost or expense incurred by such Bank as a result of the
timing of such payment or in redepositing such principal amount, including the
sum of (i) the interest which, but for such payment, such Bank would have earned
in respect of such principal amount so paid, for the remainder of the Interest
Period applicable to such sum, reduced, if such Bank is able to redeposit such
principal amount so paid for the balance of such Interest Period, by the
interest earned by such Bank as a result of so redepositing such principal
amount plus (ii) any expense or penalty incurred by such Bank on redepositing
----
such principal amount.
"Consolidated Current Assets" shall mean, as of any date, the current
---------------------------
assets which would be reflected on a consolidated balance sheet of Company and
the Subsidiaries prepared as of such date in accordance with Generally Accepted
Accounting Principles, but excluding (i) all accounts receivable in respect of
products, goods and/or services which were delivered or performed by Company or
any Subsidiary at least 90 days prior to such date (or, with respect to
receivables attributable to proceeds of production from the Mineral Properties,
periods longer than 90 days if such receivables are otherwise payable in the
ordinary course of business at periods longer than 90 days) and any notes
receivable due from any Subsidiary, (ii) Intangible Assets, and (iii) assets
held primarily for resale other than hydrocarbons severed from the Mineral
Properties in the ordinary course of business and gas and other hydrocarbons
(including by-products thereof) that are held by the Gas Marketing Subsidiaries
for resale; provided, further, Company's Consolidated Current Assets shall
include an amount equal to the difference, if any, between the Borrowing Base
then in effect and the Total Outstandings.
"Consolidated Current Liabilities" shall mean, as of any date, the current
--------------------------------
liabilities which would be reflected on a consolidated balance sheet of Company
and the Subsidiaries prepared as of such date in accordance with Generally
Accepted Accounting Principles, but excluding (i) current maturities of funded
Indebtedness of Company and Subsidiaries; (ii) accrued stock appreciation right
expenses of Company, as reflected on the most recent financial statement of such
Persons which are delivered to Banks pursuant to this Loan Agreement; and (iii)
Permitted Margin Debt.
"Conversion Date": Section 2.02(c).
---------------
"CRT Units" shall mean any publicly traded units of Cross Timbers Royalty
---------
Trust.
-8-
<PAGE>
"CT Energy" shall mean Cross Timbers Energy Services, Inc., a Texas
---------
corporation, and a Subsidiary of Company.
"CT Operating" shall mean Cross Timbers Operating Company, a Texas
------------
corporation, and a Subsidiary of Company.
"Determination Date" shall mean each June 30.
------------------
"Dividends", in respective of any corporation, shall mean:
---------
(1) Cash distributions or any other distributions on, or in respect
of, any class of capital stock of such corporation, except for
distributions made solely in shares of stock of the same class:
and
(2) Any and all funds, cash or other payments in respect of the
redemption, repurchase or acquisition of such stock, unless such
stock shall be redeemed or acquired through the exchange of such
stock with stock of the same class.
"Dollars" and the sign "$" shall mean lawful currency of the United States
------- -
of America.
"Environmental Laws" shall mean CERCLA, RCRA and any other applicable laws,
------------------
statutes, regulations, judicial interpretations, ordinances, rules, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
government restriction of the United States or any state where the Mineral
Properties are located or any other Governmental Authority having jurisdiction
over Company or the Subsidiaries or any of their respective properties or
assets, pertaining to health or the environment, as they now exist or are
hereafter enacted and/or amended, including, without limitation, those matters
relating to the emissions, discharges or releases of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes or
the clean-up or other remediation thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended, together with all regulations issued pursuant thereto.
"Eurodollar Advance" shall mean any principal amount under a Note with
------------------
respect to which the interest rate is calculated by reference to the Adjusted
Interbank Rate for a particular Interest Period.
"Eurodollar Borrowing" shall mean any Borrowing composed of Eurodollar
--------------------
Advances.
-9-
<PAGE>
"Eurodollar Business Day" shall mean a Business Day on which dealings in
-----------------------
Dollars are carried out in the London interbank market.
"Eurodollar Reserve Percentage" shall mean, for any day, that percentage
-----------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Advances is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents).
"Event of Default": Article 10.
----------------
"Excess Interest Amount": Section 4.03(b).
----------------------
"Facility Amount" shall mean, on any date, $600,000,000.
---------------
"FDIC Percentage" shall mean for any Interest Period the net annual
---------------
assessment rate (rounded upwards, if necessary, to the next higher 1/100 of 1%)
actually incurred by Morgan Guaranty Trust Company of New York to the Federal
Deposit Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of Morgan Guaranty Trust Company
of New York in the United States during the most recent period for which such
rate has been determined prior to the commencement of such Interest Period.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if such day is not a Business Day, the
--------
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to Morgan
Guaranty Trust Company of New York on such day on such transactions as
determined by Administrative Agent.
"Floating Base Advance" shall mean any principal amount under a Note with
---------------------
respect to which the interest rate is calculated by reference to the Floating
Base Rate.
"Floating Base Borrowing" shall mean any Borrowing composed of Floating
-----------------------
Base Advances.
-10-
<PAGE>
"Floating Base Rate" shall mean, for any day, a rate per annum equal to the
------------------
higher of (i) the Prime Rate for such day or (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Gas Marketing Subsidiary" shall mean (i) Ringwood, (ii) CT Energy, (iii)
------------------------
Timberland, and (iv) any other Subsidiary of Company whose assets, business or
operations consists primarily of gas gathering and transmission pipelines and/or
the sale, resale, transportation, processing and marketing of natural gas and
by-products thereof.
"Gas Report" means a report delivered by Company to Banks pursuant to
----------
Section 5.03, Section 5.04 or Section 8.01(d).
"Gas Subsidiaries' Loan Value": Section 5(a)(i).
----------------------------
"Generally Accepted Accounting Principles" shall mean those generally
----------------------------------------
accepted accounting principles and practices which are recognized as such by the
American Institute of Certified Public Accountants acting through its Accounting
Principles Board or by the Financial Accounting Standards Board or through other
appropriate boards or committees thereof and which are consistently applied for
all periods after the date hereof so as to properly reflect the financial
condition, and the results of operations and changes in financial position, of
Company and the Subsidiaries, except that any accounting principle or practice
required to be changed by the said Accounting Principles Board or Financial
Accounting Standards Board (or other appropriate board or committee of the said
Boards) in order to continue as a generally accepted accounting principle or
practice may so be changed on or as of the date such change is adopted.
"Governmental Authority" shall mean any government (or any political
----------------------
subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over Company or any Subsidiary or any
of its or their business, operations or properties.
"Guaranty" of any Person shall mean any contract, agreement or
--------
understanding of such Person pursuant to which such Person guarantees, or in
effect guarantees, any Indebtedness of any other Person (the "Primary Obligor")
in any manner, whether directly or indirectly, including without limitation
agreements:
(1) to purchase such Indebtedness or any property constituting security
therefor;
(2) to advance or supply funds (a) for the purchase or payment of such
Indebtedness, or (b) to maintain working capital or other balance sheet
conditions, or otherwise to advance or make available funds for the purchase or
payment of such Indebtedness;
(3) to purchase property, securities or services primarily for the
purpose of assuring the holder of such Indebtedness of the ability of the
Primary Obligor to make payment of the Indebtedness; or
-11-
<PAGE>
(4) otherwise to assure the holder of the Indebtedness of the Primary
Obligor against loss in respect thereof; except that "Guaranty" shall not
------ ----
include the endorsement by Company or a Subsidiary in the ordinary course of
business of negotiable instruments or documents for deposit or collection.
"Hedge Agreement" shall mean any commodity pricing agreement, forward sale,
---------------
"price swap" agreement or commodity rate-shifting agreement or similar
agreement or contractual relationship between Company or any Subsidiary and any
Person (including any Bank) pursuant to which Company holds a position in the
price of any quantity of crude oil, natural gas or other hydrocarbons to be
produced from the Mineral Properties such that the price derived from the first
sale of any quantity of oil, gas or other hydrocarbons produced from the
Mineral Properties is established prior to the actual production of such oil,
gas or other hydrocarbons; provided, however, that a Hedge Agreement shall not
include any monthly spot sales of Company's gas production from the Mineral
Properties that occur in the ordinary course of its business. A Hedge Agreement
shall also include the option of Company or any Subsidiary to buy or sell a
Hedge Agreement.
"Indebtedness" with respect to any Person shall mean as of any date, all
------------
liabilities and contingent liabilities which would be reflected on a balance
sheet and related notes thereto of such Person prepared as of such date in
accordance with Generally Accepted Accounting Principles, including without
limitation: (i) all obligations for money borrowed; (ii) all obligations under
conditional sale or other title retention agreements and all obligations issued
or assumed as full or partial payment for property, whether or not any such
obligations represent obligations for borrowed money; (iii) all indebtedness
secured by a lien existing on property owned or acquired by such Person subject
to any such lien, whether or not the obligations secured thereby shall have been
assumed; (iv) all obligations, direct or indirect, to any joint venture,
partnership or other entity of which such Person is a member; (v) all
obligations under any Guaranty, note purchase agreement and other document
having similar effect; (vi) all obligations for accounts payable or trade
credit; (vii) indebtedness of any joint venture, partnership or other Person for
which such Person is directly or indirectly liable; (viii) all obligations under
any Capital Lease, operating lease or any other leases only to the extent such
leases would be treated as indebtedness in accordance with Generally Accepted
Accounting Principles; (ix) all obligations under an Interest Swap Agreement;
and (x) all obligations under a Hedge Agreement.
"Intangible Assets" of any Person shall mean those assets of such Person
-----------------
which are (i) deferred assets, other than prepaid insurance and prepaid taxes;
(ii) patents, copyrights, trademarks, trade names, franchises, goodwill,
experimental expenses and other similar assets which would be classified as
intangible assets on a balance sheet of such Person, prepared in accordance with
Generally Accepted Accounting Principles; (iii) unamortized debt discount and
expense; and (iv) assets located, and notes and receivables due from obligors
domiciled, outside of the United States of America.
"Interbank Offered Rate" shall mean, with respect to each Interest Period,
----------------------
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum
-12-
<PAGE>
at which deposits in dollars are offered to each of the Reference Banks in the
London interbank market at approximately 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount approximately
equal to the principal amount of the Eurodollar Advance of such Reference Banks
to which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Interest Period" shall mean, with respect to a Eurodollar Advance or CD
---------------
Advance, a period commencing:
(i) on the borrowing date of such Eurodollar Advance or CD Advance
made pursuant to Section 2.01 of this Loan Agreement; or
(ii) on the Conversion Date pertaining to such Eurodollar Advance or
CD Advance, if such Eurodollar Advance or CD Advance is made pursuant to a
conversion as described in Section 2.02(c) hereof; or
(iii) on the date of borrowing specified in the Request for Borrowing
in the case of a rollover to a successive Interest Period,
and ending one, two, three or six months thereafter (in the case of a Eurodollar
Advance), or 30, 60, 90 or 180 days thereafter (in the case of a CD Advance) as
Company shall elect in accordance with Section 2.02(c) of this Loan Agreement;
provided, that:
(A) any Interest Period which would otherwise end on a day which is
not a Business Day (or in the case of a Eurodollar Advance, a Eurodollar
Business Day) shall be extended to the next succeeding Business Day or
Eurodollar Business Day (as the case may be) unless, in the case of a Eurodollar
------
Advance, such Eurodollar Business Day falls in another calendar month in which
case such Interest Period shall end on the next preceding Eurodollar Business
Day;
(B) in the case of a Eurodollar Advance, any Interest Period which
begins on the last Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month or at the
end of such Interest Period) shall, subject to clause (A) above, end on the last
Eurodollar Business Day of a calendar month;
(C) if the Interest Period for any Eurodollar Advance or CD Advance
would otherwise end after the Maturity Date, such Interest Period shall end on
the Maturity Date; and
(D) If (i) certificates of deposit are bid by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each Reference Bank of its certificates of deposit having maturities
longer than the Interest Periods set forth above for a CD Advance, or (ii)
deposits in dollars are offered to each of the Reference Banks in the London
interbank market for periods of time which are longer than the Interest Periods
set forth above for a Eurodollar Advance, then, subject to the approval of all
Banks, longer Interest Periods shall be made available to Company for such CD
Advances and Eurodollar Advances
-13-
<PAGE>
which are identical to the longer maturities of certificates of deposit or
deposits in dollars as set forth above, but such longer Interest Periods shall
be further subject to subclauses (A), (B) and (C) immediately above.
"Interest Swap Agreement" shall mean an agreement between Company and any
-----------------------
Person (including any Bank) pursuant to which, with the intent to protect
against fluctuations in interest rates or the exchange of notional interest
obligations, either generally or under certain circumstances, such Persons agree
to exchange a series of cash flows or revenues measured by different interest
rates, and includes agreements providing for the exchange of a fixed rate of
interest for a floating rate of interest and vice versa, one floating rate of
interest for another floating rate of interest or fixed rate of interest in one
currency for a floating rate of interest in another currency.
"Investment" in any Person shall mean any investment, whether by means of
----------
share purchase, loan, advance, extension of credit, capital contribution or
otherwise, in or to such Person, the Guaranty of any Indebtedness of such
Person, or the subordination of any claim against such Person to other
Indebtedness of such Person.
"Lease Agreements" shall mean the documents evidencing (i) the equipment
----------------
and facilities lease transaction among Timberland, as Lessee, NationsBank
Leasing Corporation and BancBoston Leasing Investment, Inc., as Owner
Participants, and Wilmington Trust Company, Trustee, as Lessor, pursuant to
which Timberland leases its Tyrone gas processing plant and related gas
gathering facilities and systems and (ii) the equipment and facilities lease
transaction among Ringwood, as Lessee, NationsBank Leasing Corporation and Banc
One Leasing Corporation, as Owner Participants, and Wilmington Trust Company,
Trustee, as Lessor, pursuant to which Ringwood leases its gas gathering facility
in Major County, Oklahoma.
"Lien" shall mean any lien, mortgage, security interest, tax lien, pledge,
----
encumbrance, conditional sale or title retention arrangement, or any other
interest in property designed to secure the repayment of Indebtedness, whether
arising by agreement or under any statute or law, or otherwise.
"Loan" shall mean the Revolving Credit Loans.
----
"Loan Agreement": The preamble.
--------------
"Loan Papers" shall mean this Loan Agreement, the Notes (including any
-----------
renewals, extensions and refundings thereof), the Guaranties of the Gas
Marketing Subsidiaries, and any agreements, certificates or documents (and with
respect to this Loan Agreement, and such other agreements and documents, any
amendments or supplements thereto or modifications thereof) executed or
delivered pursuant to the terms of this Loan Agreement. Loan Papers also
include any Collateral Documents executed by Company and the Gas Marketing
Subsidiaries pursuant to Section 8.19 hereof.
-14-
<PAGE>
"Majority Banks" shall mean, at any time, Banks holding Notes representing
--------------
at least fifty-one percent (51.00%) of the aggregate unpaid principal amount of
the Loan, or if no Loans are at the time outstanding, Banks having at least
fifty-one percent (51.00%) of the Commitment.
"Material Adverse Effect" means any circumstance or event which (i) would
-----------------------
have or has had any adverse effect whatsoever upon the validity or
enforceability of any Loan Papers, (ii) is or would be material and adverse to
the financial condition or business operations of Company or any Subsidiary,
taken as a whole (iii) has impaired or would impair the ability of Company to
perform any of its material Obligations or substantially all of its Obligations
under the Loan Papers, or (iv) causes an Event of Default or any event which,
with notice or lapse of time or both, would become an Event of Default.
"Maturity Date: shall mean December 31, 2002.
-------------
"Maximum Rate" shall mean, on any day, the highest nonusurious rate of
------------
interest (if any) permitted by applicable law on such day. Banks hereby notify
Company that, and disclose to Company that, for purposes of Chapter 303 of the
Texas Finance Code, as supplemented by Texas Credit Title, as it may from time
to time be amended, the applicable ceiling shall be the "weekly ceiling" from
time to time in effect as specified in such Chapter 303; provided, however, that
to the extent permitted by applicable law, Banks reserve the right to change the
applicable ceiling from time to time by further notice and disclosure to
Company; and, provided further, that the "highest nonusurious rate of interest
permitted by applicable law" for purposes of this Loan Agreement and the Notes
shall not be limited to the applicable ceiling under the Texas Finance Code, as
supplemented by Texas Credit Title, if federal laws or other state laws now or
hereafter in effect and applicable to this Loan Agreement, and the Notes (and
the interest contracted for, charged and collected hereunder or thereunder)
shall permit a higher rate of interest.
"Mineral Properties" shall mean, as of any date, Company's interest in
------------------
and to (i) oil, gas and/or mineral leases, royalty and overriding royalty
interests, production payments, net profits interests and mineral fee interests,
(ii) unitization, communitization and pooling arrangements (and all properties
covered and units created thereby), whether arising by contract or operation of
law, which include all or any part of the foregoing, (iii) lands subject to any
of the foregoing, (iv) equipment, fixtures, rights-of-way, easements, goods,
chattels, accounts, accounts receivable, contract rights, chattel paper, general
intangibles, and other items of personal property related to, located on or used
in connection with the foregoing; (v) processing facilities, pipelines, salt
water disposal wells and facilities, transportation rights and facilities, and
other equipment, machinery, rights or facilities related to or used in
connection with the marketing, transporting, producing, processing, or gathering
of oil, gas or hydrocarbons. Upon Company's acquisition of the Amoco
Properties, the Amoco Properties shall be deemed Mineral Properties. Mineral
Properties shall not include beneficial ownership interests in oil and gas
royalty interests or other oil and gas interests attributable to CRT Units or
Non-CT Royalty Trust Units.
"Net Revenue" shall mean for each Reference Period shall mean the
-----------
remainder of (i) all cash proceeds received by Company or any Gas Marketing
Subsidiary during such Reference
-15-
<PAGE>
Period on account of (a) the sale of oil, gas and/or other mineral production
received by Company or any Gas Marketing Subsidiary for the Reference Period and
attributable to the Mineral Properties and/or the business and operations of the
Gas Marketing Subsidiaries; (b) the processing, transporting, gathering or
marketing of oil, gas and/or mineral production received by Company or any Gas
Marketing Subsidiary for the Reference Period and attributable to the Mineral
Properties and/or the business and operations of the Gas Marketing Subsidiaries;
(c) fees for the disposal of salt water (or similar liquid) on the Mineral
Properties received by Company for the Reference Period, (d) settlement, buy-
out, compromise or renegotiation of any gas purchase or sales contract which
affects any of the Mineral Properties, (e) amounts received by Company during
such Reference Period on account of any Hedge Agreement, and (f) the cash
dividends and distributions projected to be paid to Company or any Subsidiary
during such Reference Period on account of its CRT Units minus (i) the actual
cash payments made by Company or any Gas Marketing-----Subsidiary during such
Reference Period on account of the operating expenses attributable to the
Mineral Properties and/or the business and operations of the Gas Marketing
Subsidiaries, including without limitation, [w] taxes, other than franchise
taxes, [x] normal leasehold operator's expenses charged by third party
operators, including overhead expenses of third party operators which are
allowed as operating expenses pursuant to relevant operating agreements, [y]
with respect to the Mineral Properties operated by Company or an Affiliate of
Company, such expenses charged by Company or its Affiliate which are allowed as
"Direct Charges" under the Accounting Procedure recommended by the Council of
Petroleum Accountant Societies and [z] amounts paid by Company on account of any
Hedge Agreement and (ii) the payments of interest made by Company during such
Reference Period for scheduled installments of interest due on the Subordinated
Indebtedness, but only to the extent that such payments of interest are
permitted according to the April 1997 Indenture and/or the October 1997
Indenture and payments made by Company or any Subsidiary during such Reference
Period on any Permitted Margin Debt that is secured by any CRT Units.
"Non-CT Royalty Trust Units" shall mean any units of beneficial or direct
--------------------------
ownership in any royalty trust other than CRT Units.
"Notes" shall mean the Notes executed by Company and delivered to Banks
-----
pursuant to the terms of this Agreement, together with any renewals, extensions
or modifications thereof. "Note" shall mean any of the Notes.
"Obligation" shall mean all present and future indebtedness, obligations,
----------
and liabilities of Company to Banks or any of them, and all renewals and
extensions thereof, or any part thereof, arising pursuant to this Loan Agreement
or represented by the Notes, and all interest accruing thereon, and attorneys'
fees incurred in the enforcement or collection thereof, regardless of whether
such indebtedness, obligations and liabilities are direct, indirect, fixed,
contingent, joint, several or joint and several; together with all indebtedness,
obligations and liabilities of Company evidenced or arising pursuant to any of
the other Loan Papers, and all renewals and extensions thereof, or part thereof
or any Interest Swap Agreement between Company and any Bank or Banks that
involves the swap or exchange of interest rates under this Loan Agreement or any
Hedge Agreement between Company and any Bank or Banks.
-16-
<PAGE>
"October 1997 Indenture" shall mean that certain Indenture dated as of
----------------------
October 28, 1997 from Company to The Bank of New York, Trustee, pursuant to
which the securities and notes evidencing $175,000,000 of the Subordinated
Indebtedness are issued.
"Other Taxes": Section 4.08.
-----------
"Participant": Section 13.15.
-----------
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
----
successor to all or any of the Pension Benefit Guaranty Corporation's functions
under ERISA.
"Percentage" shall mean, with respect to any Bank, such Bank's
----------
proportionate share of the Commitment in effect from time to time, as set forth
in Schedule I hereto.
"Permitted Liens" shall mean, as of any date: (i) pledges or deposits made
---------------
to secure payment of worker's compensation (or to participate in any fund in
connection with worker's compensation), unemployment insurance, pensions or
social security programs; (ii) contractual liens for the benefit of operators of
the Mineral Properties, but only to the extent that such operators are not
asserting a claim or right to exercise their rights under such contractual
liens, except for such claims and rights of operators which Company contests in
good faith and for which adequate reserves are maintained according to Generally
Accepted Accounting Principles; (iii) liens imposed by mandatory provisions of
law such as for materialmen's, mechanic's, warehousemen's and other like liens
arising in the ordinary course of business; (iv) liens for taxes, assessments
and governmental charges or levies imposed upon a Person or upon such Person's
income or profits or property, if the same are not yet due and payable or if the
same are being contested in good faith and as to which adequate reserves have
been provided; (v) good faith deposits in connection with tenders, leases, real
estate bids or contracts (other than contracts involving the borrowing of
money), pledges or deposits to secure public or statutory obligations, deposits
to secure (or in lieu of) surety, stay, appeal or customs bonds and deposits to
secure the payment of taxes, assessments, customs duties as other similar
charges; (vi) encumbrances consisting of zoning restrictions, easements, or
other restrictions on the use of real property, provided that such do not impair
the use of real property for the uses intended, and none of which is violated in
any material respect by existing or proposed structures or land use; (vii) the
terms and provisions of the leases, assignments, unit agreements and other
instruments of conveyance or transfer applicable to or affecting the Mineral
Properties; (viii) the terms and provisions of the assignments and other title
transfer documents under which Company acquired the Mineral Properties including
any right retained by a predecessor in title of Company to purchase hydrocarbons
produced therefrom; (ix) any inconsequential, insignificant or immaterial liens
or encumbrances against any Mineral Property which does not interfere with or
impair Company's ownership of, or right or ability to receive proceeds of
production from, such property, and which, singularly or collectively with other
inconsequential, insignificant or immaterial liens or encumbrances, do not
result in a Material Adverse Effect on Company or any Subsidiary, (x) the Liens
granted by Timberland to third-party lessors covering its compressor station and
interconnect facility, pursuant to certain lease agreements between Timberland
and such lessors, (xi) Liens granted pursuant to the Lease Agreements, (xii)
Liens against Investments of
-17-
<PAGE>
Company or its Subsidiaries that are Capital Stock in publicly traded companies
engaged primarily in the oil and gas industry, CRT Units and Non-CT Royalty
Trust Units that are pledged to secure Permitted Margin Debt, (xiii) any Lien
not otherwise included in subclauses (x) or (xi) above that is granted by
Company or a Subsidiary under any equipment lease agreement in which Company or
a Subsidiary is a lessee up to an aggregate face amount for all of such
equipment lease agreements of $5,000,000 during any calendar year, (xiv) the
Collateral Documents and (xv) any other liens or encumbrances to which Majority
Banks agree in writing.
"Permitted Margin Debt" shall mean Indebtedness of Company and its
---------------------
Subsidiaries that is secured by Capital Stock in publicly traded companies
engaged primarily in the oil and gas industry, CRT Units and Non-CT Royalty
Trust Units that are owned by Company and its Subsidiaries up to an aggregate
amount at any one time outstanding of (i) $25,000,000 plus (ii) that unused or
available portion of the Indebtedness permitted by subclause (xi) of Section
9.01 hereof that is secured by Capital Stock in publicly traded companies
engaged primarily in the oil and gas industry, CRT Units and Non-CT Royalty
Trust Units that are owned by Company and its Subsidiaries.
"Person" shall include an individual, a corporation, a joint venture, a
------
partnership, a trust, an unincorporated organization or a government or any
agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan or other plan maintained by
----
Company for employees of Company and/or its Subsidiaries and covered by Title IV
of ERISA, or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code of 1954, as amended.
"Present Value of Borrowing Base Reserves": Section 5.01 (a)(i).
----------------------------------------
"Prime Rate" means the rate of interest publicly announced by Morgan
----------
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Prior Loan Agreement" shall mean that certain Revolving Credit Agreement
--------------------
dated as of May 28, 1997 by and among Company, Morgan Guaranty Trust Company of
New York, as Administrative Agent, NationsBank of Texas, N. A., as Syndication
Agent, and the other lenders parties thereto, to the extent same is amended by
consent letter dated October 7, 1997 among Company and such lenders.
"Production Profile" shall mean the projected rates of production,
------------------
projected declines in production, the percentage of oil or gas production to the
total of all production of oil or gas, and other elements, characteristics, or
components of or respecting the production, recovery or projected production or
recovery of oil or gas attributable to the Proved Reserves of the Mineral
Properties, as set forth in the Reserve Reports covering the Mineral Properties
which were utilized in determining the initial Borrowing Base hereunder.
"Projected Interest Rate" shall mean, for purposes of determining the Cash
-----------------------
Flow Projections as of the date of determining any such projections, a rate per
annum equal to the
-18-
<PAGE>
weighted average applicable rate of interest payable by Company on all
outstanding Indebtedness (exclusive of the Subordinated Indebtedness) during the
most recently ended period of 30 consecutive calendar days, or, if no such
Indebtedness is outstanding, the rate of interest which would then be applicable
for a Eurodollar Advance, in the amount of $5,000,000, with an Interest Period
of one month.
"Proved Developed Producing Reserves" shall have the meaning assigned to
-----------------------------------
that term by the Society of Petroleum Engineers, as it may be amended from time
to time, but generally shall mean the subcategory of "Proved Developed Reserves"
(as defined by the Society of Petroleum Engineers) which are recoverable from
the completion intervals currently open and producing to market. Additional oil
and gas expected to be obtained through the application of fluid injection or
other improved recovery techniques for supplementing the natural forces and
mechanisms of primary recovery will be included as "Proved Developed Producing
Reserves" only after the operation of an installed program has confirmed through
production response through existing completions producing to market that
increased recovery will be achieved. Proved Developed Producing Reserves shall
not include any Proved Developed Non-Producing Reserves.
"Proved Developed Non-Producing Reserves" shall have the meaning assigned
---------------------------------------
to that term by the Society of Petroleum Engineers, as it may be amended from
time to time, but generally shall mean the subcategory of "Proved Developed
Reserves" (as defined by the Society of Petroleum Engineers) which will become
"Proved Developed Producing Reserves" upon minor capital expenditures being made
with respect to existing wells which will cause formerly non-producing
completions or intervals to become open and producing to market.
"Proved Reserves" means and includes Proved Developed Producing Reserves,
---------------
Proved Developed Non-Producing Reserves and Proved Undeveloped Reserves.
"Proved Undeveloped Reserves" shall have the meaning assigned to that term
---------------------------
by the Society of Petroleum Engineers, as it may be amended from time to time,
but generally shall mean those reserves that are expected to be recovered from
new wells on undrilled acreage, or from existing wells where a relatively major
expenditure is required for recompletion. Proved Undeveloped Reserves on
undrilled acreage shall be limited to those drilling units offsetting productive
units that are reasonably certain of production when drilled. Proved
Undeveloped Reserves for other undrilled units can be claimed only where it can
be demonstrated with certainty that there is continuity of production from the
existing productive formation. Under no circumstances should estimates for
Proved Undeveloped Reserves be attributable to any acreage for which an
application of fluid injection or other improved recovery technique is
contemplated, unless such techniques have been proved effective by actual tests
in the area and in the same reservoir.
"PV Borrowing Base Test": Section 5.01(a)(i).
----------------------
"Quarterly Period" shall mean each three-month period(s) commencing on the
----------------
first day of January, April, July and October, and ending on the last day of
each March, June, September and December, respectively.
-19-
<PAGE>
"RCRA" shall mean the Resource Conservation and Recovery Act of 1976, as
----
amended by the Used Oil Recycling Act of 1980, the Hazardous and Solid Waste
Disposal Act Amendments of 1984 and the Hazardous and Solid Waste Amendments of
1984.
"Reference Banks" shall mean Morgan Guaranty Trust Company of New York and
---------------
NationsBank of Texas, N.A., and with respect to a Eurodollar Borrowing,
Reference Banks shall refer to the principal London office, if any, of any
Reference Bank or their respective Affiliates.
"Regulation D" shall mean Regulation D of the Board of Governors of the
------------
Federal Reserve System from time to time in effect and shall include any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulation U" shall mean Regulation U promulgated by the Board of
------------
Governors of the Federal Reserve System, 12 C.F.R. Part 221, or any other
regulation hereafter promulgated by said Board to replace the prior Regulation U
and having substantially the same function.
"Regulation X" shall mean Regulation X promulgated by the Board of
------------
Governors of the Federal Reserve System, 12 C.F.R. Part 224, or any other
regulation hereafter promulgated by said Board to replace the prior Regulation X
and having substantially the same function.
"Reportable Event" shall have the meaning assigned to that term in Title IV
----------------
of ERISA.
"Request for Borrowing": Section 2.02(a).
---------------------
"Reserve Base" shall mean the type, character, location, field and nature
------------
of ownership of the oil and gas leases, overriding royalty interests, mineral
interests, royalty interests, net profits interests, production payments and
other oil, gas and/or mineral interests or properties which comprise the Mineral
Properties, and the working interests and net revenue interests of Company in
and to the Mineral Properties, as set forth in the Reserve Reports for the
Mineral Properties which were utilized in determining the initial Borrowing Base
hereunder.
"Reserve Report" means a report delivered by Company pursuant to Section
--------------
5.03, Section 5.04 or Section 8.01(c).
"Revolving Credit Loans": Section 2.01(a).
----------------------
"Ringwood" shall mean Ringwood Gathering Company, a Delaware corporation,
--------
and a Subsidiary of Company.
"Rollover Notice": Section 2.02(c).
---------------
"Scheduled Installment": Section 5.06(a).
---------------------
-20-
<PAGE>
"Speculative Trading" shall mean the holding by Company or any Subsidiary
-------------------
of a position in, or forward sale respecting, any derivative or commodity
transaction, excluding any transaction respecting the physical sale, storage,
transportation or marketing of oil, gas or other hydrocarbons produced from the
Mineral Properties, the hedging of Company's position in oil, gas or other
hydrocarbons produced from the Mineral Properties or any portion thereof
pursuant to a Hedge Agreement, but only to the extent that such Hedge Agreement
is permitted under Section 9.18 hereof, or any gas storage transaction entered
into by any Gas Marketing Subsidiary in the ordinary course of its business.
Speculative Trading shall also include any Interest Swap Agreement that is
entered into for speculative purposes and not for the purpose of protecting
against fluctuations in interest rates or the exchange of notional obligations,
either generally or under specific circumstances.
"Subordinated Indebtedness" shall mean, collectively, the Indebtedness
-------------------------
evidenced by (i) the 9 1/4% Series A Senior Subordinated Notes and Series B
Senior Subordinated Notes, due April 1, 2007, in the aggregate principal amount
of $125,000,000, which have been issued pursuant to the April 1997 Indenture,
and (ii) the 8 3/4% Series A Senior Subordinated Notes and Series B Senior
Subordinated Notes due November 1, 2009, in the aggregate principal amount of
$175,000,000, which have been issued pursuant to the October 1997 Indenture.
"Subsidiary" or "Subsidiaries" shall mean CT Energy, CT Operating,
---------- ------------
Timberland, Ringwood, WTW Properties, Inc., a Texas corporation, Cross Timbers
Trading Company, a Texas corporation, and any and all other corporations,
partnerships, joint ventures, business trusts or other legal entities in which
Company, either directly or indirectly through one or more intermediaries, owns
or holds beneficial or record ownership of a majority of the outstanding voting
securities or equity interests therein.
"Supplemental Borrowing Base Deficiency Certificate": Section 5.06(b).
--------------------------------------------------
"Syndication Agent": The preamble, and as otherwise provided in Article
-----------------
11.
"Taxes": Section 4.08.
-----
"Temporary Cash Investment" shall mean any Investment in (i) direct
-------------------------
obligations of the United States of America or any agency thereof, or
obligations fully guaranteed by the United States of America or any agency
thereof, provided that such obligations mature within 360 days of the date of
acquisition thereof, (ii) commercial paper rated in the highest grade by two or
more national credit rating agencies and maturing not more than 270 days from
the date of creation thereof, and (iii) time deposits with, and certificates of
deposit and banker's acceptances issued by, any United States bank having
capital surplus and undivided profits aggregating at least $1,000,000,000.
"Threshold Amount" shall mean, at any time during the period between the
----------------
closing date of the Amoco Acquisition to December 31, 1998, the amount equal to
the remainder of (i) the quotient of (a) the Present Value of Borrowing Base
Reserves that are attributable to the Proved Reserves allocable to the Borrowing
Base Assets (provided that at least eighty-five percent
-21-
<PAGE>
(85%) of such Proved Reserves shall consist of Proved Developed Producing
Reserves) plus the Gas Subsidiaries' Loan Value divided by (b) 1.35, less (ii)
---- ---------- ----
the unpaid principal balance of the Subordinated Indebtedness then outstanding.
Upon closing of the Amoco Acquisition the Threshold Amount shall be (a)
$351,200,000 if the Trade Properties are not conveyed to Amoco Production
Company or (b) $340,800,000 if the Trade Properties are conveyed to Amoco
Production Company. During the period between the closing date of the Amoco
Acquisition to December 31, 1998, the Threshold Amount shall be determined (and
approved by Majority Banks) as provided in Section 2.03(d) hereof and upon each
redetermination of the Borrowing Base
"Timberland" shall mean Timberland Gathering & Processing Company, Inc., a
----------
Texas corporation, and a Subsidiary of Company.
"Total Outstandings" shall mean, at any date, the aggregate of the
------------------
principal amount of, and accrued interest which is overdue and unpaid in respect
of, the Loan.
"Trade Properties" shall mean those Mineral Properties of Company that may
----------------
be transferred to Amoco Production Company at the consummation of the Amoco
Acquisition in lieu of a portion of the purchase price to be paid by Company for
the Amoco Properties, the identification of such Trade Properties Company has
previously been disclosed to Agents.
"Trustee" shall mean the Trustee under the April 1997 Indenture and/or the
-------
October 1997 Indenture, including any successor trustee designated pursuant to
the April 1997 Indenture and/or the October 1997 Indenture.
Other Definitional Provisions.
-----------------------------
(a) All terms defined in this Loan Agreement shall have the above-
defined meanings when used in the Notes or any Loan Papers, certificate, report
or other document made or delivered pursuant to this Loan Agreement, unless the
context therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural
and vice versa.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Loan Agreement shall refer to this Loan Agreement as a whole and
not to any particular provision of this Loan Agreement.
-22-
<PAGE>
ARTICLE 2
---------
THE REVOLVING CREDIT LOANS
--------------------------
2.01. Revolving Loan Commitments.
--------------------------
(a) Revolving Loan Commitments. Subject to the terms and
--------------------------
conditions of this Loan Agreement, each Bank severally agrees to extend to
Company, from the date hereof through the term of this Loan Agreement, a
revolving line of credit which shall not exceed at any one time outstanding such
Bank's Percentage of the lesser of: (i) the Borrowing Base in effect and as
redetermined from time to time, or (ii) the Facility Amount. No Bank shall be
obligated to make any Loan if, after giving effect thereto, the Total
Outstandings exceed the lesser of (i) the Borrowing Base then in effect or (ii)
the Facility Amount.
The Commitment shall never exceed the Borrowing Base then in effect.
Provided, however, if, upon the redetermination of the Borrowing Base, the
Borrowing Base exceeds the Commitment then in effect, the Commitment may be
increased to an amount (that shall not exceed the Borrowing Base as
redetermined) which all Banks shall, in their sole discretion, approve in
writing, following a request from Company for such increase, but the Commitment
shall never exceed the Facility Amount. Except for the increase of the
Commitment to occur upon the closing of the Amoco Acquisition, Banks shall have
no obligation to increase the Commitment. The initial Commitment is
$162,000,000, and upon consummation of the Amoco Acquisition, the Commitment
shall be (a) $410,000,000 if the Trade Properties are not conveyed to Amoco
Production Company or (b) $400,000,000 if the Trade Properties are conveyed to
Amoco Production Company until redetermined according to Section 5.03, 5.04 or
5.05 hereof. The Loan may from time to time be (i) Floating Base Borrowings,
(ii) Eurodollar Borrowings or (iii) CD Borrowings, as selected by Company and
notified to Administrative Agent according to Section 2.02 hereof.
An initial Advance in an amount equal to the unpaid principal balance and
accrued interest due on the Indebtedness under the Prior Loan Agreement as of
the Closing Date shall be made by Banks on the Closing Date to refinance the
Indebtedness outstanding as of the Closing Date under the Prior Loan Agreement.
Within the limits of this Section 2.01, Company may borrow, prepay pursuant to
Section 4.02 hereof and reborrow under this Section 2.01. Each Borrowing
pursuant to this Section 2.01 shall be funded ratably by Banks in proportion to
their respective Percentages. Each Advance made by a Bank hereunder is herein
called an "Advance"; all Advances made by a Bank hereunder are herein
collectively called a "Loan;" the aggregate unpaid principal balance of all
Advances made by Banks hereunder are herein collectively called the "Loans;" and
the combined Advances made by Banks on any given day are herein collectively
called a "Borrowing."
(b) Reduction of Commitment. Company shall have the right, upon
-----------------------
three (3) Business Days' prior written notice to Administrative Agent, to
terminate or to permanently reduce the unborrowed portion of the Commitment, in
whole or in part (provided any partial reduction shall be in the minimum amount
of $10,000,000 or any integral multiple of
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<PAGE>
$1,000,000), effective on the first day of any Quarterly Period hereafter. Each
partial reduction of the Commitment shall ratably reduce each Bank's Commitment.
There shall be no termination or permanent reduction to any borrowed portion of
the Commitment unless such termination or reduction is accompanied by a
mandatory prepayment on the Loan in an amount that will cause the Total
Outstandings to not exceed the Commitment as reduced.
(c) Commitment Fee. In addition to the payments provided for in
--------------
Article 4 hereof, Company shall pay to Administrative Agent for the account of
each Bank, on the first day of each Quarterly Period, a revolving credit loan
commitment fee at the following rates per annum on the average daily amount of
such Bank's Commitment which was unused during the immediately preceding
Quarterly Period.
Borrowing Base Percentage Commitment Fee
------------------------- --------------
Less than or equal to 50% one-fourth of one percent (1/4%)
Greater than 50% three-eighths of one percent (3/8%)
If the Borrowing Base Percentage during any Quarterly Period should increase
above 50% or decrease below 50% (or both), the Commitment Fee shall be prorated
as to the number of days during the Quarterly Period that the Borrowing Base
Percentage was above or below 50%, as the case may be. Company and Banks
acknowledge and agree that the commitment fees payable hereunder are bona fide
commitment fees and are intended as reasonable compensation to Banks for
committing to make funds available to Company as described herein and for no
other purpose. The commitment fees payable hereunder shall be calculated on the
basis of the actual days elapsed in a year consisting of 360 days.
(d) Use of Proceeds. The proceeds of the Loan shall be used (i) on
---------------
the Closing Date to refinance the Indebtedness under the Prior Loan Agreement,
(ii) at the consummation of the Amoco Acquisition, to finance, in part,
Company's acquisition of the Amoco Properties, (iii) for the payment of capital
expenditures, drilling costs and other expenses incurred by Company in the
further development of the Mineral Properties, (iv) to purchase additional
Mineral Properties and (v) for working capital and general corporate purposes of
Company and its Subsidiaries, but only to the extent that the use of proceeds
for such purposes would be permitted under the terms of this Loan Agreement.
2.02. Manner of Borrowing.
-------------------
(a) Request for Borrowing. Each request by Company to Administrative
---------------------
Agent for a Borrowing under Section 2.01 hereof (a "Request for Borrowing")
shall specify the aggregate amount of such requested Borrowing, the requested
date of such Borrowing, and, when the request for Borrowing specifies a
Eurodollar Borrowing or a CD Borrowing, the Interest Period which shall be
applicable thereto. Company shall furnish to Administrative Agent the Request
for Borrowing at least three (3) Eurodollar Business Days prior to the requested
Eurodollar Borrowing date (which must be a Eurodollar Business Day) and at least
two (2)
-24-
<PAGE>
Business Days prior to the requested borrowing date (which must be a Business
Day) for a CD Borrowing. A Floating Base Borrowing may be made the same date on
which a Request for Borrowing is received by Administrative Agent. Any such
Request for Borrowing shall: (i) in the case of a Floating Base Borrowing, be in
the form attached hereto as Exhibit "B", (ii) in the case of a CD Borrowing, be
in the form attached hereto as Exhibit "C" and (iii) in the case of a Eurodollar
Borrowing, be in the form attached hereto as Exhibit "D". Each Borrowing shall
be in an aggregate principal amount of $5,000,000 or any integral multiple of
$1,000,000. Any Request for Borrowing received by Administrative Agent after
12:00 noon (New York City time) on any Business Day shall be deemed to have been
received on the next succeeding Business Day.
Prior to making a Request for Borrowing, Company may (without
specifying whether the anticipated Borrowing shall be a Floating Base Borrowing,
CD Borrowing or Eurodollar Borrowing) request that Administrative Agent provide
Company with the most recent CD Quoted Rate and InterBank Offered Rate available
to Reference Banks. Administrative Agent shall provide such quoted rates to
Company on the date of such request.
Each Request for Borrowing shall be irrevocable and binding on Company
and, in respect of the Borrowing specified in such Request for Borrowing,
Company shall indemnify each Bank against any cost, loss or expense incurred by
such Bank as a result of any failure to fulfill, on or before the date specified
for such Borrowing, the conditions to such Borrowing set forth herein, including
without limitation, any cost, loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Bank to
fund the Advance to be made by such Bank as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date.
After receiving a Request for Borrowing in the manner provided herein,
Administrative Agent shall promptly notify each Bank by telephone (confirmed
immediately by telex, telecopy or cable), telecopy, telex or cable of the amount
of the Borrowing and such Bank's pro rata share of such Borrowing, the date on
which the Borrowing is to be made, the interest option selected and, if
applicable, the Interest Period selected.
(b) Funding. Each Bank shall, before 1:00 P.M. (New York City time)
-------
on the date of such Borrowing specified in the notice received from
Administrative Agent pursuant to Section 2.02(a), deposit such Bank's ratable
portion of such Borrowing in immediately available funds to an account
maintained by Administrative Agent as designated by Administrative Agent. Upon
fulfillment of all applicable conditions set forth herein and after receipt by
the Administrative Agent of such funds, Administrative Agent shall pay or
deliver such proceeds to or upon the order of Company at the principal office of
Administrative Agent in immediately available funds. The failure of any Bank to
make any Advance required to be made by it hereunder shall not relieve any other
Bank of its obligation to make its Advance hereunder. If any Bank shall fail to
provide its ratable portion of such funds and if all conditions to such
Borrowing shall have apparently been satisfied, Administrative Agent will make
available such funds as shall have been received by it from the other Banks, in
accordance with this Section 2.02(b). Neither Administrative Agent nor any Bank
shall be responsible for the
-25-
<PAGE>
performance by any other Bank of its obligations hereunder. In the event of any
failure by a Bank to make an Advance required hereunder, the other Banks may
(but shall not be required to) purchase (on a pro rata basis, according to their
respective Percentages) such Bank's Note. Upon the failure of a Bank to make an
Advance required to be made by it hereunder, Administrative Agent may, in its
sole discretion, attempt to obtain one or more banks, acceptable to Banks, to
replace such Bank, but neither Administrative Agent nor any other Bank shall
have any liability or obligation whatsoever as a result of the failure to obtain
a replacement for such Bank.
Unless Administrative Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to
Administrative Agent such Bank's ratable portion of such Borrowing,
Administrative Agent may assume that such Bank has made such portion available
to Administrative Agent on the date of such Borrowing in accordance with Section
2.02(b) and Administrative Agent may, in reliance upon such assumption, make
available to or on behalf of Company on such date a corresponding amount. If
and to the extent such Bank shall not have so made such ratable portion
available to Administrative Agent, such Bank and Company severally agree to
repay to Administrative Agent forthwith on demand such corresponding amount
together with interest at the Federal Funds Rate, for each day from the date
such amount is made available to or on behalf of Company until the date such
amount is repaid to Administrative Agent, at the rate per annum equal to the
rate applicable to the Borrowing in question. If such Bank shall repay to
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Advance as part of such Borrowing for purposes of this
Loan Agreement.
(c) Selection of Interest Option. Upon making a Request for Borrowing
----------------------------
under Section 2.02(a) hereof, Company shall advise Administrative Agent as to
whether the Borrowing shall be (i) a Eurodollar Borrowing, in which case Company
shall specify the applicable Interest Period therefor, (ii) a CD Borrowing, in
which case Company shall specify the applicable Interest Period therefor, or
(iii) a Floating Base Borrowing. At least two (2) Business Days or Eurodollar
Business Days, as the case may be, prior to the termination of each Interest
Period with respect to a Eurodollar Borrowing or a CD Borrowing (whether such
termination occurs before or after the Maturity Date) Company shall give
Administrative Agent written notice (the "Rollover Notice") of the interest
option which shall be applicable to such Borrowing upon the expiration of such
Interest Period. If Company shall specify that such Borrowing shall be a
Eurodollar Borrowing or a CD Borrowing, such Rollover Notice shall also specify
the length of the succeeding Interest Period selected by Company with respect to
such Advance. Each Rollover Notice shall be irrevocable and effective upon
notification thereof to Administrative Agent. If the required Rollover Notice
shall not have been timely received by Administrative Agent prior to the
expiration of the then-relevant Interest Period, then Company shall be deemed
to have elected to have such Borrowing be a Floating Base Borrowing. With
respect to any Floating Base Borrowing, Company shall have the right, on any
Business Day or Eurodollar Business Day as the case may be (a "Conversion Date")
to convert such Floating Base Borrowing to a Eurodollar Borrowing or to a CD
Borrowing, by giving Administrative Agent a Rollover Notice of such selection at
least two (2) Business Days or Eurodollar Business Days, as the case may be,
prior to such Conversion Date.
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<PAGE>
Notwithstanding anything to the contrary contained herein, Company
shall have no right to request a Eurodollar Borrowing or CD Borrowing if the
interest rate applicable thereto under Section 2.03 hereof would exceed the
Maximum Rate in effect on the first day of the Interest Period applicable to
such Eurodollar Borrowing or CD Borrowing.
2.03. Interest Rate.
-------------
(a) Floating Base Advance. The unpaid principal of each Floating Base
---------------------
Advance shall bear interest from the date of advance until paid at a rate per
annum which shall from day to day be equal to the lesser of (a) the Maximum Rate
or (b) the sum of the Floating Base Rate in effect from day to day plus the
Applicable Margin.
(b) Eurodollar Advance. The unpaid principal of each Eurodollar
------------------
Advance (inclusive of any rollover of or conversion to a Eurodollar Borrowing)
shall bear interest from the date of advance until paid at a rate per annum
which shall from day to day be equal to the lesser of (i) the Maximum Rate or
(ii) the sum of the Adjusted InterBank Rate for the Interest Period in effect
plus the Applicable Margin.
(c) CD Advance. The unpaid principal balance of each CD Advance
----------
(inclusive of any rollover of or conversion to a CD Borrowing) shall bear
interest from the date of advance until paid at a rate per annum which shall
from day to day be equal to the lesser of (a) the Maximum Rate or (b) the sum of
(i) the FDIC Percentage in effect on such date plus (ii) the Adjusted CD Rate
for Interest Period in effect plus (iii) the Applicable Margin.
(d) Threshold Amount. During the period from the closing date of the
----------------
Amoco Acquisition to December 31, 1998, changes to the Applicable Margin on
account of the Total Outstandings exceeding the Threshold Amount shall (a) take
effect automatically without prior notice to Company upon the occurrence of such
event as to any Floating Base Borrowing then outstanding and any CD Borrowing
and Eurodollar Borrowing then outstanding if 30 days or more remain until the
termination of the Interest Period for such CD Borrowing and Eurodollar
Borrowing, or (b) take effect as to any CD Borrowing and Eurodollar Borrowing
then outstanding with less than 30 days remaining until the termination of the
Interest Period for such CD Borrowing and Eurodollar Borrowing upon the
termination of the Interest Period for such CD Borrowing or Eurodollar
Borrowing, as the case may be; provided, however, that subsequent changes to the
Applicable Margin that occur when the Total Outstandings do not exceed the
Threshold Amount shall take effect on the next Business Day succeeding the date
that either of the following shall occur:
(i) Company makes a prepayment of principal on the Loan in an
amount that will cause the resulting Total Outstandings to not exceed the
Threshold Amount;
(ii) Company provides to Agents a Borrowing Base Certificate
pursuant to Section 5.03, 5.04 or 5.05 hereof that certifies that the Total
Outstandings do not exceed the Threshold Amount; or
-27-
<PAGE>
(iii) Company provides to Agents a certificate (a "Supplemental
Certificate") signed by the chief financial officer of Company that
certifies that Company has acquired additional Mineral Properties that are
not included in the Borrowing Base then in effect, and if such additional
Mineral Properties were to be included in the Borrowing Base then in effect
the then Total Outstandings would not exceed the Threshold Amount
calculated after giving effect to the Borrowing Base value allocable to the
additional Mineral Properties, such certificate to also include (a) either
a Reserve Report prepared by Miller and Lents or such other firm of
independent petroleum engineers acceptable to Agents, or, if approved by
Majority Banks, a Reserve Report prepared by the chief in-house petroleum
engineer employed by Company that evaluates the additional Mineral
Properties and (b) title opinions and other title information satisfactory
to Agents that evidence that Company owns indefeasible title to such
additional Mineral Properties, and such certificate shall take into account
any adjustments to the Borrowing Base required under Section 5.05 hereof.
The Threshold Amount calculated after giving effect to the Borrowing Base
value allocable to the additional Mineral Properties as set forth in
Company's Supplemental Certificate shall not cause or constitute a
redetermination of the Borrowing Base then in effect, but shall establish
the Threshold Amount to be in effect until redetermined according to this
Section 2.03(d) or Section 5.03, 5.04 or 5.05 hereof. However, the
Borrowing Base value allocable to the additional Mineral Properties shall
be included with the Borrowing Base then in effect for sole and limited
purpose of determining the Borrowing Base Percentage and the Applicable
Margin in effect when the Total Outstandings do not exceed the Threshold
Amount.
Provided, however, that (a) in the case of subclause (ii) above, if
pursuant to Section 5.03, 5.04 or 5.05 hereof, Majority Banks disapprove of
the Borrowing Base proposed by Company under its Borrowing Base Certificate
and Majority Banks approve a Borrowing Base that reflects that the then
Total Outstandings exceed the Threshold Amount, or (b) in the case of
subclause (iii) above, Majority Banks determine that the Borrowing Base
value allocable to the additional Mineral Properties set forth in Company's
Supplemental Certificate does not cause the then Total Outstandings to be
less than the Threshold Amount calculated after giving effect to the
Borrowing Base value allocable to the additional Mineral Properties, the
Applicable Margin that is in effect when the Total Outstandings exceed the
Threshold Amount shall again take effect retroactive to the prior date that
the Applicable Margin took effect based upon Company's Borrowing Base
Certificate or Supplemental Certificate, as the case may be, in which case
Company shall pay to Administrative Agent, for the account of Banks, the
amount of underpayment of interest resulting from the retroactive
application of interest under this Section 2.03(d), such payment to be made
by Company within five (5) Business Days following Company's receipt of
notice from Administrative Agent of such underpayment of interest.
Thereafter, the Applicable Margin that is in effect when the Total
Outstandings exceed the Threshold Amount shall remain in effect until
either of the events set forth above in subclause (i), (ii) or (iii) above
shall occur.
-28-
<PAGE>
2.04. Borrowing Base Increase Fee. Company shall pay to Administrative
---------------------------
Agent, for the account of all Banks, an additional fee upon each subsequent
increase to the Borrowing Base that is agreed to by Banks according to Section
2.01(a) and Article 5 hereof in an amount that is agreed to between Company and
Banks as a condition precedent to the increase to the Borrowing Base by Banks.
2.05 Up-Front Fees. At the Closing Date, Company shall pay to
-------------
Administrative Agent the fee that is required to be paid by Company to Agents
pursuant to that certain fee letter agreement dated October 23, 1997 among
Company, Agents and Arrangers. (At the Closing Date, out of such fee paid by
Company, Administrative Agent shall pay to each Bank (according to each Bank's
Percentage) a fee in the amount of one-tenth of one percent (0.1%) of the Banks'
Commitment at the Closing Date, and at the Closing Date of the Amoco
Acquisition, Administrative Agent shall pay to each Bank (according to each
Bank's Percentage) a fee of one-tenth of one percent (0.1%) of the amount that
is the difference between (i) the Banks' Commitment upon the consummation of the
Amoco Acquisition less (ii) the Banks' Commitment at the Closing Date.
2.06 Maximum Number of Eurodollar Borrowings. All Eurodollar
---------------------------------------
Borrowings, including rollovers of Eurodollar Borrowings and conversions to
Eurodollar Borrowings, shall be made in such manner that, after giving effect
thereto, there are no more than twelve (12) Interest Periods applicable to
outstanding Eurodollar Borrowings in effect at any time; provided, however, that
-------- -------
more than twelve (12) such Interest Periods applicable to outstanding Eurodollar
Borrowings may be permitted to be in effect with the prior approval of
Administrative Agent.
ARTICLE 3
---------
GUARANTY
--------
3.01. Guaranty. The Loan shall be unconditionally guaranteed by CT
--------
Operating and each of the Gas Marketing Subsidiaries pursuant to a form of
Guaranty satisfactory to Majority Banks. CT Operating and each Gas Marketing
Subsidiary will be required to make customary representations and warranties
required by Majority Banks of guarantors.
ARTICLE 4
---------
NOTES AND NOTE PAYMENTS
-----------------------
4.01. Notes. The Advances made under Section 2.01(a) hereof by a Bank
-----
shall be evidenced by the Revolving Promissory Notes executed by Company and
delivered to each Bank pursuant to the terms of this Agreement (each a "Note"
and collectively, the "Notes") which Notes shall (i) be dated the date hereof,
(ii) be in the amount of such Bank's Percentage of the Facility Amount, (iii) be
payable to the order of such Bank at the office of Administrative Agent, (iv)
bear interest in accordance with Section 2.03 hereof, and (v) be in the form of
Exhibit "A" attached hereto with blanks appropriately completed in conformity
herewith. Each Note shall mature on the Maturity Date, at which time all
Obligations under such Note shall become
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immediately due and payable. Notwithstanding the principal amount of any Bank's
Note as stated on the face thereof, (a) such Bank's Commitment shall never
exceed its Percentage of the Commitment then in effect, and (b) the amount of
principal actually owing on such Note at any given time shall be the aggregate
of all Advances theretofore made to Company hereunder, less all payments of
principal theretofore actually received hereunder, by such Bank. Each Bank is
authorized, but is not required, to endorse on the schedule attached to its Note
appropriate notations evidencing the date and amount of each Advance as well as
the amount of each payment made by Company hereunder.
4.02. Prepayments.
-----------
(a) Optional Prepayments. Company may, without premium or penalty,
--------------------
upon one (1) Business Days' prior written notice to Administrative Agent, prepay
the principal of the Notes then outstanding, in whole or in part, at any time or
from time to time; provided, however, that (i) each prepayment of less than the
full outstanding principal balance of any Note shall be in an amount equal to
$1,000,000 or an integral multiple thereof, (ii) if Company shall prepay the
principal of any Eurodollar Borrowing or CD Borrowing on any date other than the
last day of the Interest Period applicable thereto, Company shall also pay to
Administrative Agent, for the account of Banks, the amounts specified in Section
12.05 (with respect to a Eurodollar Borrowing or a CD Borrowing), and (iii)
Company shall at all times maintain a sufficient portion of the Loans as a
Floating Base Borrowing to allow Company to make regularly scheduled payments of
principal without paying a CD Borrowing or Eurodollar Borrowing prior to the end
of the applicable Interest Period. Upon receipt of such notice of intention to
prepay, Administrative Agent shall promptly notify each Bank of the receipt of
such notice and of the date and amount of the proposed prepayment.
(b) Mandatory Prepayments. Company shall make mandatory prepayments
---------------------
of the Notes, as appropriate, as required under Sections 8.13 and Section 9.07.
(c) General Prepayment Provisions. Any prepayment of a Note
-----------------------------
hereunder shall be (i) made together with interest accrued (through the date of
such prepayment) on the principal amount prepaid, and (ii) applied first to
accrued interest and then to principal.
4.03. Payment of Interest on the Notes.
--------------------------------
(a) Notes. Interest on the unpaid principal amount of each Floating
-----
Base Advance under the Notes shall be payable quarterly as it accrues on the
last Business Day of each Quarterly Period, commencing December 31, 1997, and at
the Maturity Date. Interest on the unpaid principal amount of each Eurodollar
Advance and CD Advance under the Notes shall be payable on the last day of each
Interest Period applicable to such Advance or, if such Interest Period is longer
than three months for any Eurodollar Advance, at intervals of three months after
the first day thereof, or if such Interest Period is longer than 90 days for any
CD Advance, at intervals of 90 days after the first day thereof.
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(b) Recapture Rate. If, on any interest payment date, Administrative
--------------
Agent does not receive (for the account of any Bank) interest on such Bank's
Note computed (as if no Maximum Rate limitations were applicable) at the
applicable contract rate described herein, because the applicable contract rate
exceeds or has exceeded the Maximum Rate, then Company shall, upon the written
demand of Administrative Agent or such Bank, pay to such Bank, in addition to
interest otherwise required hereunder, on each interest payment date thereafter,
the Excess Interest Amount (hereinafter defined) calculated as of such later
interest payment date; provided, however, that in no event shall Company be
required to pay, for any appropriate computation period, interest at a rate
exceeding the Maximum Rate effective during such period. The term "Excess
Interest Amount" shall mean, on any date, with respect to the Note of any Bank,
the amount by which (a) the amount of all interest which would have accrued
prior to such date on the principal of such Note (had the applicable contract
rate(s) described herein at all times been in effect, without limitation by the
Maximum Rate) exceeds (b) the aggregate amount of interest actually paid to such
-------
Bank on such Note on or prior to such date.
4.04. Calculation of Interest Rates. Interest on the unpaid principal
-----------------------------
of each CD Borrowing and Eurodollar Borrowing shall be calculated on the basis
of the actual days elapsed in a year consisting of 360 days. Interest on the
unpaid principal of each Floating Base Borrowing shall be calculated on the
basis of the actual days elapsed in a year consisting of 365 or 366 days, as
appropriate.
4.05. Manner and Application of Payments. All payments of principal
----------------------------------
of, and interest on, any Note to or for the account of any Bank shall be made by
Company to Administrative Agent before 2:00 p.m. (New York City time), in
Federal or other immediately available funds at Administrative Agent's principal
banking office in New York City. Should the principal of, or any installment of
the principal or interest on, any Note, or any commitment fee, become due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day. Each payment received by
Administrative Agent hereunder for the account of a Bank shall be promptly
distributed by Administrative Agent to such Bank. All payments made on any Note
shall be credited, to the extent to the amount thereof, in the following manner:
(i) first to fees, costs and expenses which Company has agreed to pay under the
Loan Papers for which Company has received an invoice no later than five (5)
days prior to such payment, (ii) second, against the amount of interest accrued
and unpaid on such Note as of the date of such payment; (iii) third, against all
principal (if any) due and owing on such Note as of the date of such payment;
(iv) fourth, as a prepayment of outstanding Floating Base Advances under such
Note; (v) fifth, as a prepayment of outstanding Eurodollar Advances and CD
Advances under such Note; and (vi) sixth, as a prepayment of any remaining
Obligation. Subject to the foregoing, payments and prepayments of principal of
the Notes shall be applied to such outstanding Floating Base Borrowings,
Eurodollar Borrowings and CD Borrowings under such Notes as Company shall
select; provided, however, that Company shall select Floating Base Borrowings,
Eurodollar Borrowings and CD Borrowings to be repaid in a manner designated to
minimize the Consequential Loss, if any, resulting from such payments; and
provided further that, if Company shall fail to select the Floating Base
Borrowings, Eurodollar Borrowings and CD Borrowings to which such payments are
to b applied, or if an Event of Default has occurred and is continuing at the
time of such payment, then Administrative Agent shall be entitled to
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<PAGE>
apply the payment to such Floating Base Borrowings, Eurodollar Borrowings and CD
Borrowings in the manner it shall deem appropriate.
4.06. Pro Rata Treatment. Each payment received by Administrative
------------------
Agent hereunder for account of Banks or any of them on the Notes shall be
distributed to each Bank entitled to share in such payment, pro rata in
--- ----
proportion to the then-unpaid principal balance of the Note of each Bank.
Unless Administrative Agent shall have received notice from Company prior to the
date on which any payment is due to Banks hereunder that Company will not make
such payment in full, Administrative Agent may assume that Company has made such
payment in full to Administrative Agent on such date and Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent Company shall not have so made such payment in full to Administrative
Agent, each Bank shall repay to Administrative Agent forthwith on demand such
amount distributed to such Bank together with interest at the Federal Funds
Rate, for each day from the date such amount is distributed to such Bank until
the date such Bank repays such amount to Administrative Agent, at the rate
applicable to such portion of the Loan on its due date.
4.07. Lending Office. Each Bank may (a) designate its principal office
--------------
or a foreign branch, subsidiary or affiliate of such Bank as its lending office
(and the office to whose accounts payments are to be credited) for any
Eurodollar Advance, (b) designate its principal office or a domestic branch,
subsidiary or affiliate as its lending office (and the office to whose accounts
payments are to be credited) for any CD Advance or Floating Base Advance and (c)
change its lending offices from time to time by notice to Administrative Agent
and Company. In such event, such Bank shall continue to hold the Note
evidencing its loans for the benefit and account of such foreign branch,
subsidiary or affiliate. Each Bank shall be entitled to fund all or any portion
of its Loan in any manner that it deems appropriate, but for the purposes of
this Agreement such Bank shall, regardless of such Bank's actual means of
funding, be deemed to have funded its Loan in accordance with the interest
option from time to time selected by Company for such Borrowing.
4.08. Taxes.
-----
(a) Any and all payments by Company hereunder or under the
Notes shall be made, in accordance with Section 4.05, 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
(hereinafter referred to as "Taxes"), excluding, in the case of each Bank and
Administrative Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank or Administrative
Agent (as the case may be) is organized or is or should be qualified to do
business or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise taxes imposed on it by the
jurisdiction of such Bank's lending office or any political subdivision thereof.
If Company shall be required by law to deduct any taxes (i.e., such taxes,
----
liens, imposts, deductions, charges, withholdings and liabilities for which
Company is responsible under the preceding sentence) from or in respect of any
sum payable hereunder or under any Note to any Bank or
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<PAGE>
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.08) such Bank or Administrative
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Company shall make such
deductions and (iii) Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, Company agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Loan Papers or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the other Loan Papers (hereinafter referred to as "Other
Taxes").
(c) Company will indemnify each Bank and Administrative 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
4.08) paid by such Bank or Administrative Agent (as the case may be) or any
liability (including penalties and interest) 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
Bank or Administrative Agent (as the case may be) makes written demand therefor,
which demand shall contain an invoice itemizing the Taxes, Other Taxes or
related liability which is subject to Company's indemnification according to
this Section 4.08.
(d) Within 30 days after the date of any payment of Taxes, Company
will furnish to Administrative Agent, at its address referred to in Section
13.05, the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
Company hereunder, the agreements and obligations of Company contained in this
Section 4.08 shall survive the payment in full of principal and interest
hereunder and under the other Loan Papers for the applicable period of
limitations respecting any Taxes, Other Taxes or related liability of Company
under this Section 4.08.
(f) Each Bank agrees to use good faith efforts to carry out its
obligations under this Loan Agreement in such a way as to reduce the amount of
Taxes attributable to the Loan, including the use of a different lending office,
as long as in the good faith opinion of such Bank such actions would not
adversely affect it.
4.09. Sharing of Payments, etc. If any Bank shall obtain any payment
-------------------------
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Advances made by it in excess of its ratable
share of payments on account of the Advances obtained by all Banks, such Bank
shall forthwith purchase from the other Banks such participations in the
Advances made by them as shall be necessary to cause such purchasing Bank 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 Bank, such
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<PAGE>
purchase from each Bank shall be rescinded and such Bank shall repay to the
purchasing Bank the purchase price to the extent of such recovery together with
an amount equal to such Bank's ratable share (according to the proportion of (i)
the amount of such Bank's required repayment, to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount recovered. Company
agrees that any Bank so purchasing a participation from another Bank pursuant to
this Section 4.09 may, to the fullest extent permitted by law, exercise all of
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of Company in
the amount of such participation. The foregoing provisions shall also apply to
any payments received by any Bank from a Gas Marketing Subsidiary respecting a
payment under the Guaranty of such Gas Marketing Subsidiary.
ARTICLE 5
---------
BORROWING BASE
--------------
5.01. Borrowing Base Tests.
--------------------
(a) Borrowing Base Tests. The Borrowing Base shall be
--------------------
determined, redetermined and adjusted from time to time pursuant to this Article
5. Upon each determination and redetermination of the Borrowing Base pursuant to
this Loan Agreement, the Borrowing Base shall be the lesser of (i) the PV
Borrowing Base Test set forth in subsection 5.01(a)(i) below, (ii) the Adjusted
PV Borrowing Base Test set forth in subsection 5.01(a)(ii) below or (iii) the
Cash Flow Borrowing Base Test set forth in subsection 5.01(a)(iii) below.
(i) The PV Borrowing Base. The PV Borrowing Base shall be
---------------------
based upon economic variables which evaluate the discounted present value of
future net income accruing to the Borrowing Base Assets as established by the
Reserve Reports de from time to time hereunder (herein called the "Present Value
of Borrowing Base Reserves") and the Gas Subsidiaries' Loan Value as determined
from time to time. The PV Borrowing Base Test shall equal the sum of (a) fifty
percent (50%) of the Present Value of Borrowing Base Reserves that are
attributable to the Proved Reserves allocable to the Borrowing Base Assets;
provided, however, that at least eighty-five percent (85%) of such Proved
Reserves shall consist of Proved Developed Producing Reserves, and (b) the loan
value assigned to the operations of the Gas Marketing Subsidiaries as determined
according to Section 5.07 herein (such loan value is herein called the "Gas
Subsidiaries' Loan Value"). The term "Borrowing Base Assets" shall mean only
such Mineral Properties (i) to which Company has good and indefeasible title and
(ii) which are not subject to any liens, encumbrances or charges, except for
Permitted Liens for or against which Indebtedness is not due and payable.
(ii) The Adjusted PV Borrowing Base Test. For the period
-----------------------------------
from the Closing Date to December 31, 1998, the Adjusted PV Borrowing Base Test
shall equal the remainder of (i) the quotient of (a) the Present Value of
Borrowing Base Reserves that are attributable to the Proved Reserves allocable
to the Borrowing Base Assets (provided that at least eighty-five percent (85%)
of such Proved Reserves shall consist of Proved Developed Producing
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<PAGE>
Reserves) plus the Gas Subsidiaries' Loan Value divided by (b) 1.24, less (ii)
---- ---------- ----
the unpaid principal balance of the Subordinated Indebtedness then outstanding.
From and after January 1, 1999, the Adjusted PV Borrowing Base Test shall equal
the remainder of (i) the quotient of (a) the Present Value of Borrowing Base
Reserves that are attributable to the Proved Reserves allocable to the Borrowing
Base Assets (provided that at least eighty-five percent (85%) of such Proved
Reserves shall consist of Proved Developed Producing Reserves) plus the Gas
----
Subsidiaries' Loan Value divided by (b) 1.35, less (ii) the unpaid principal
---------- ----
balance of the Subordinated Indebtedness then outstanding.
(iii) The Cash Flow Borrowing Base Test. The Cash Flow Borrowing Base
---------------------------------
Test shall establish a Borrowing Base amount that, based on Company's Cash Flow,
will (i) cause the Borrowing Base to be fully amortized over a period of years
selected by Company and approved by Majority Banks (or selected by Majority
Banks in their sole discretion if Majority Banks do not agree with Company's
proposed amortization period), with such amortization to be accomplished through
assumed quarterly principal payments on the amortizing Borrowing Base at the end
of each Quarterly Period of such amortization period and (ii) cause (a) Company
to maintain a Cash Flow for each of the current year and next succeeding year of
the assumed amortization period (or partial current annual period in the case of
a special determination of the Borrowing Base under Section 5.04, with the
current year commencing on January 1 of the year in which the certificate
described in Section 5.06(a) is delivered) that is 1.25 times greater than the
cumulative payments of principal which are necessary to make the required
amortization of the Borrowing Base during each of such years, and
---
(b) Company to maintain a Cash Flow for each annual period of the assumed
amortization period thereafter that is 1.00 times greater than the cumulative
payments of principal which are necessary to make the required amortization of
the Borrowing Base during each of such years. (The amortization of the Borrowing
Base that is required to establish the Cash Flow Borrowing Base Test is herein
called the "Assumed Amortization Schedule.") Although the Assumed Amortization
Schedule may establish a Borrowing Base that may not be fully amortized until
after the Maturity Date, nothing contained herein shall be construed to extend
the Maturity Date.
The Borrowing Base Tests and all components thereof shall be based upon the
information contained in the most recent Reserve Report and Gas Report delivered
by Company to Banks pursuant to Sections 5.03 and 5.04, together with any other
information reasonably requested by either Agent or Majority Banks, and shall be
determined in the manner and according to the procedures set forth in this
Article 5; provided further, that the components used to establish the Borrowing
Base Tests shall be subject to adjustment as determined by Majority Banks if
Majority Banks determine that there has been a material change in the Reserve
Base or Production Profile of the Proved Reserves attributable to the Mineral
Properties (such adjustment to the components used to establish the Borrowing
Base Tests to be effective upon written notice thereof from Agents to Company).
Any Borrowing Base which becomes effective as a result of any
redetermination of the Borrowing Base according to this Article 5 shall be
subject to the following restrictions: (a) such Borrowing Base shall not exceed
the Borrowing Base requested by Borrower pursuant to Section 5.03 or 5.04 (as
applicable), (b) such Borrowing Base shall not exceed the Commitment then in
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effect, (c) to the extent such Borrowing Base represents an increase from the
Borrowing Base in effect prior to such redetermination, shall be approved by all
Banks, and (d) to the extent such Borrowing Base represents a decrease or
reaffirmation of the prior Borrowing Base, shall be approved by Majority Banks.
Notwithstanding the foregoing, provided that all conditions precedent set forth
in Sections 7.02 and 7.03 have been satisfied, the Borrowing Base and the
Commitment shall be increased to (a) $410,000,000 if the Trade Properties are
not conveyed to Amoco Production Company or (b) $400,000,000 if the Trade
Properties are conveyed to Amoco Production Company upon closing of the Amoco
Acquisition.
5.02. Initial Borrowing Base. During the period from the Closing Date to
----------------------
the closing of the Amoco Acquisition, the Borrowing Base shall be $162,000,000,
unless sooner redetermined according to Section 5.03, 5.04, or 5.05. From
consummation of the Amoco Acquisition to June 30, 1998, the Borrowing Base shall
be (a) $410,000,000 if the Trade Properties are not conveyed to Amoco Production
Company or (b) $400,000,000 if the Trade Properties are conveyed to Amoco
Production Company, unless sooner redetermined according to Section 5.03, 5.04
or 5.05.
5.03. Subsequent Determination of Borrowing Base. The Borrowing Base
------------------------------------------
shall be determined annually as of each Determination Date of each year during
the Loan commencing June 30, 1998. Company shall deliver to Banks on or before
April 15 of each year, commencing April 15, 1998:
(a) a report (the "Reserve Report") prepared as of December 31 of
the immediately preceding year by Miller and Lents or such other firm or firms
of independent petroleum engineers acceptable to Agents, in accordance with
customary standards and procedures of the petroleum industry, which report shall
evaluate the Proved Reserves attributable to the Mineral Properties as Company
desires to be considered for Borrowing Base purposes (such evaluation shall
include, without limitation, a description of Proved Reserves, rates of
production, gross revenues, operating expenses, windfall profit taxes, ad
valorem taxes, capital costs, net revenues and present value of future net
revenues attributable to such reserves and production therefrom, and a statement
of the assumptions upon which such determinations were made), and each Reserve
Report shall utilize in its evaluation of the Proved Reserves attributable to
the Mineral Properties the economic variables agreed to by Company and Agents
and approved by Majority Banks (or designated by Majority Banks if Company and
Majority Banks are unable to agree to such variables) pursuant to Section 5.07
hereof;
(b) a report (the "Gas Report"), prepared by Company as of December
31 of the immediately preceding year and certified by the chief financial
officer of Company as being true and correct, setting forth in reasonable detail
the results of the operations of the Gas Marketing Subsidiaries for the
preceding year, including income and expenses attributable to each of the Gas
Marketing Subsidiaries during such period, and a projection of cash flow setting
forth for each of the Gas Marketing Subsidiaries the projected (a) net earnings
(before income taxes) of such Gas Marketing Subsidiary for the current fiscal
year and each succeeding fiscal year during the remaining term of the Loan, as
determined in accordance with Generally Accepted Accounting Principles plus (b)
any non-cash changes, such as depreciation, depletion
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<PAGE>
and amortization, which were subtracted from gross earnings in determining
projected net earnings for purposes of clause (a) above, and each such Gas
Report shall utilize in its economic projections the economic variables,
assumptions, computations and other parameters agreed to by Company and Agents
and approved by Majority Banks (or designated by Majority Banks if Company and
Majority Banks are unable to agree to such variables, assumptions, computations
and other parameters) for the purpose of establishing the Gas Subsidiaries' Loan
Value pursuant to Section 5.07 hereof;
(c) a certificate signed by the chief financial officer of Company,
which sets forth Company's proposed Assumed Amortization Schedule and projects
(i) Company's Cash Flow for each annual period until the Borrowing Base has been
fully amortized according to the Assumed Amortization Schedule, with each such
annual period commencing January 1 of each applicable year and ending on
December 31 of such year, and with Cash Flow being based upon the most recent
Reserve Report and Gas Report submitted to Banks pursuant to Section 5.03 and
the financial information delivered to Banks according to Section 9.01 hereof,
(ii) the cumulative projected payments of interest on the Loan during each such
annual period, with such projected interest payments to be determined on the
basis of the Projected Interest Rate during such annual periods and (iii) the
projected cumulative payments of principal which are necessary to make the
amortization of the Borrowing Base according to the Assumed Amortization
Schedule during the current and each succeeding annual periods during the term
of the proposed Assumed Amortization Schedule, with each such annual period
commencing January 1 of each applicable year and ending on December 31 of such
year, such certificate to include all computations and derivations relating to
the Assumed Amortization Schedule and the projections specified in subclauses
(i) through (iii) above in reasonable detail (the projections set forth in
subclauses (i) through (iii) above are herein called the "Cash Flow
Projections");
(d) if requested by either Agent, (a) title opinions or other title
information, satisfactory to such Agent to evidence that Company holds
indefeasible title to those additional Mineral Properties to be included in the
Borrowing Base, and/or (b) any Hedge Agreements then in force and effect, and/or
(c) such specific agreements and contracts which evidence the right of the Gas
Marketing Subsidiaries to receive any projected revenues or cash flow set forth
in the Gas Report; and
(e) a certificate (the "Borrowing Base Certificate"), signed by the
chief financial officer of Company which sets forth Company's determination of
the Borrowing Base Tests and resulting Borrowing Base and components thereof as
set forth in Section 5.01 hereof, such certificate to include all computations
and derivations relating to Company's proposed Borrowing Base Tests and
resulting Borrowing Base, and components thereof in reasonable detail, all of
which shall be based upon the Reserve Report delivered pursuant to subclause (a)
above, the Gas Report delivered pursuant to subclause (b) above, and the Assumed
Amortization Schedule and Cash Flow Projections delivered pursuant to clause (c)
above. Also, for Borrowing Base determinations prior to December 31, 1998,
Company's Borrowing Base Certificate shall also set forth Company's calculation
of the Threshold Amount.
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<PAGE>
Within forty-five (45) days after their receipt of such information, Agents
shall give Company and Banks written notice of whether Majority Banks approve of
the proposed Borrowing Base as established by the Borrowing Base Tests set forth
in Company's Borrowing Base Certificate, or, alternatively, whether Majority
Banks disapprove of the proposed Borrowing Base as established by the Borrowing
Base Tests set forth in Company's Borrowing Base Certificate, including, without
limitation, Majority Banks disapproval of the Assumed Amortization Schedule and
the Cash Flow Projections set forth in such certificate. If, for any reason,
Majority Banks disapprove of the Borrowing Base proposed by Company according to
its determination of the Borrowing Base Tests, then Company and Agents shall
consult with one another to determine the Borrowing Base Tests and the resulting
Borrowing Base which will be approved by Majority Banks. Majority Banks shall
determine, in their sole discretion, the Borrowing Base Tests and the resulting
Borrowing Base if the Reserve Report, Gas Report, Assumed Amortization Schedule,
Cash Flow Projections and Borrowing Base Certificate required to be delivered to
Banks pursuant to this Section 5.03 are not delivered to Banks on or before
April 15 of the applicable year or if Majority Banks and Company are not able to
agree upon the Borrowing Base should Majority Banks disapprove of the Borrowing
Base Tests and resulting Borrowing Base proposed by Company. The Borrowing Base
(and the resulting Commitment of Banks) established pursuant to this Section
5.03 shall be effective as of the ensuing Determination Date and shall remain in
effect until it is subsequently redetermined pursuant to this Section 5.03 or
Section 5.04 or is adjusted pursuant to Section 5.05; provided, however, if the
-------- -------
Borrowing Base as redetermined represents a decrease in the Borrowing Base then
in effect, the Bank's Commitment shall decrease to the amount of the
redetermined Borrowing Base effective as of the date that Agents provide Company
with written notice of the redetermined Borrowing Base. Also, for Borrowing
Base determinations prior to December 31, 1998, the foregoing shall also apply
to Majority Banks' approval or determination of the Threshold Amount.
5.04. Special Determination of Borrowing Base. In addition to the
---------------------------------------
determinations of the Borrowing Base required pursuant to Section 5.03 hereof,
special determinations thereof may be made for any reason not more than once
during any twelve month period during the Loan at the option of (i) Company,
(ii) either Agent or (iii) Majority Banks. In order to request a special
determination of the Borrowing Base, the Person requesting such determination
shall provide Agents and Company with a written request of such determination.
Prior to any special determination of the Borrowing Base, Company shall submit
to Banks:
(a) a current Reserve Report prepared by Miller and Lents or such
other firm of independent petroleum engineers acceptable to Majority Banks,
prepared in accordance with customary standards and procedures of the petroleum
industry, which report shall (A) evaluate the Mineral Properties subject to such
redetermination (in the same manner as provided in Section 5.03) and (B) be
dated within sixty (60) days of such requested redetermination;
(b) a current Gas Report prepared by Company and certified by the
chief financial officer of Company, which report shall be dated within sixty
(60) days of the requested redetermination;
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<PAGE>
(c) an Assumed Amortization Schedule and Cash Flow Projections
certified by the chief financial officer of Company, based upon the Reserve
Report and Gas Report delivered under subclauses (a) and (b) above;
(d) if requested by either Agent, (a) title opinions or other title
information, acceptable to such Agent to evidence that Company holds
indefeasible title to those Mineral Properties which are to be considered within
the Borrowing Base, and/or (b) any Hedge Agreements then in force and effect,
and/or (c) such specific agreements and contracts which evidence the right of
the Gas Marketing Subsidiaries to receive any projected revenues or cash flow
set forth in the Gas Report; and
(e) a Borrowing Base Certificate, signed by the chief financial
officer of Company, which sets forth Company's determination of the Borrowing
Base Tests and the resulting Borrowing Base and components thereof as set forth
in Section 5.01 hereof, such certificate to include all computations and
derivations relating to Company's proposed Borrowing Base Tests and resulting
Borrowing Base and components thereof in reasonable detail, all of which shall
be based upon the Reserve Report delivered pursuant to subclause (a) above, the
Gas Report delivered pursuant to subclause (b) above, and the Assumed
Amortization Schedule and Cash Flow Projections delivered pursuant to subclause
(c) above. Also, for Borrowing Base determinations prior to December 31, 1998,
Company's Borrowing Base Certificate shall also set forth Company's calculation
of the Threshold Amount.
Within forty-five (45) days after their receipt of such information, Agents
shall give Company and Banks written notice of whether Majority Banks approve of
the proposed Borrowing Base Tests and the resulting Borrowing Base set forth in
Company's Borrowing Base Certificate, or, alternatively, whether Majority Banks
disapprove of the proposed Borrowing Base Tests and the resulting Borrowing Base
set forth in Company's Borrowing Base Certificate including, without limitation,
Majority Banks disapproval of Company's Assumed Amortization Schedule or Cash
Flow Projections. If, for any reason, Majority Banks disapprove of the
Borrowing Base Tests and the resulting Borrowing Base proposed by Company, then
Company and Agents shall consult with one another to determine the Borrowing
Base which will be approved by Majority Banks. If a Borrowing Base Deficiency
shall exist upon any redetermination of the Borrowing Base under this Section
5.04 and such Borrowing Base Deficiency is not cured by the next succeeding
Borrowing Base determined pursuant to Section 5.03 hereof, then there shall be a
mandatory redetermination of the Borrowing Base as of the anniversary date of
the effective date of such Borrowing Base Deficiency. Such mandatory
redetermination shall be in addition to any special redetermination of the
Borrowing Base which may be made pursuant to this Section 5.04. (Also, as set
forth in Section 6.21, Section 6.22 and Section 9.19, a redetermination of the
Borrowing Base may be made according to such Sections, which redeterminations
shall be in addition to any other redetermination which may be made pursuant to
this Section 5.04.) Majority Banks shall determine, in their sole discretion,
the Borrowing Base Tests and resulting Borrowing Base if the Reserve Report, Gas
Report, Assumed Amortization Schedule and Cash Flow Projections and certificate
required to be delivered to Banks pursuant to this Section 5.04 are not
delivered to Banks within 60 days after request for a special determination or
Company and Majority Banks are unable to agree to the
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Borrowing Base Tests and resulting Borrowing Base should Majority Banks
disapprove of the Borrowing Base Tests and resulting Borrowing Base proposed by
Company. The effective date of the Borrowing Base determined under this Section
5.04 shall be the first Business Day of the calendar month succeeding the month
that Majority Banks approve the Borrowing Base as redetermined under this
Section 5.04. Also, for Borrowing Base determinations prior to December 31,
1998, the foregoing shall also apply to Majority Banks' approval or
determination of the Threshold Amount.
5.05. Interim Sales of Mineral Properties. After a Borrowing Base has
-----------------------------------
been determined, upon the sale by Company of any Mineral Property (other than
the sale of hydrocarbons after severance in the ordinary course of business),
the Borrowing Base shall be reduced, effective on the date of consummation of
such sale, by an amount which Company certifies to Banks is the Borrowing Base
value last assigned to such Mineral Property according to the most recent
Reserve Report and Borrowing Base Certificate delivered to Banks; provided,
however, that if Majority Banks, for any reason, disapprove of the proposed
Borrowing Base value certified by Company, then Majority Banks shall determine
the Borrowing Base value last assigned to such Mineral Property according to the
most recent Reserve Report and Borrowing Base Certificate delivered to Banks;
provided, further, that no such reduction to the Borrowing Base shall be
required with respect to aggregate net sales proceeds of up to $5,000,000 during
any calendar year during the term of the Loan, and provided further, that all
such sales shall be subject to the provisions of Section 9.07. Company and
Banks agree that upon consummation of the Amoco Acquisition and if the Trade
Properties are conveyed to Amoco Production Company, the Borrowing Base shall
exclude the Trade Properties and the $400,000,000 Borrowing Base that will exist
upon the consummation of the Amoco Acquisition and the conveyance of the Trade
Properties to Amoco Production Company takes into account the reduction to the
Borrowing Base of the loan value assigned to the Trade Properties. Further,
pursuant to the terms of the Purchase and Sale Agreement evidencing the Amoco
Acquisition, after the closing of the Amoco Acquisition, certain of the Amoco
Properties may be excluded from the Amoco Acquisition and the purchase price for
the Amoco Properties may be reduced by the value allocated to such excluded
Amoco Properties, on account of preferential purchase rights that are exercised
by third parties, title defects and/or adverse environmental conditions (such
properties affected by any of the foregoing are herein called the "Defect
Properties"). After the purchase price for the Amoco Properties has been
reduced by an aggregate amount of $10,000,000 on account of Defect Properties,
the Borrowing Base shall thereafter be reduced by the loan value assigned to any
additional Defect Properties according to the reserve report covering the Amoco
Properties that was delivered by Company to Agents or, if available, the most
recent Reserve Report delivered to Banks. During the period from the Closing
Date to December 31, 1998, any reduction to the Borrowing Base according to this
Section 5.05 shall cause a dollar-for-dollar reduction to the Threshold Amount.
5.06. Borrowing Base Deficiency.
-------------------------
(a) Borrowing Base Deficiency. If after determination of the
-------------------------
Borrowing Base under Section 5.03 hereof, or after a special determination of
the Borrowing Base under Section 5.04 hereof, the Borrowing Base is less than
the Total Outstandings as of the effective date of
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such Borrowing Base (the amount by which the Borrowing Base is less than the
Total Outstandings is herein called a "Borrowing Base Deficiency"), then
Majority Banks may cause Company to commence paying to Administrative Agent, for
the account of all Banks, a quarterly principal installment (each a "Scheduled
Installment") on the Notes and Loan to be paid on the last Business Day of each
successive Quarterly Period (commencing on the last Business Day of the
Quarterly Period during which Company provides to Banks the Borrowing Base
Deficiency Certificate or Agents provide Company with written notice of the
Borrowing Base Deficiency, whichever is the first to occur), each such quarterly
Scheduled Installment to be that percentage of Net Revenue for the Quarterly
Period (the "Reference Period") preceding the Quarterly Period in which such
installment is due that Company certifies to Banks will cause the projected
Borrowing Base (such projection being set forth in the Borrowing Base Deficiency
Certificate which Company provide to Banks, as described below) to exceed the
projected Total Outstandings (such projection being set forth in the Borrowing
Base Deficiency Certificate which Company provide to Banks, as described below)
as of the first anniversary date of the effective date of the Borrowing Base
Deficiency. That percentage of Net Revenue which shall be applied to principal
payments hereunder shall be referred to as the "Base Dedicated Percentage."
Company's certificate (herein called a "Borrowing Base Deficiency Certificate")
setting forth such Base Dedicated Percentage of Net Revenue shall be delivered
to Banks within ten (10) days following (i) Company's receipt from Agents of
written notice of the existence of such Borrowing Base Deficiency or (ii)
Company's delivery to Banks of a Borrowing Base Certificate that reflects the
existence of a Cash Flow Deficiency upon redetermination of the Borrowing Base
set forth in such certificate, whichever is the first to occur. The Borrowing
Base Deficiency Certificate shall include all computations and derivations
relating to the proposed Base Dedicated Percentage of Net Revenue in reasonable
detail, and such certificate shall further state (i) the Borrowing Base then in
effect, (ii) the Total Outstandings, (iii) the Borrowing Base Deficiency, and
(iv) the projected Borrowing Base and projected Total Outstandings as of the
first anniversary date of the Borrowing Base Deficiency. Regardless of the
foregoing provisions of this Section 5.06(a), Majority Banks shall jointly
determine at their discretion the Base Dedicated Percentage if Majority Banks,
based on all information reasonably available to them, disagree with Company's
Borrowing Base Deficiency Certificate as to the Base Dedicated Percentage of Net
Revenue to be in effect or if Company fails to provide the Borrowing Base
Deficiency Certificate. The effective date of any Borrowing Base Deficiency
shall be the effective date of the Borrowing Base to which causes the Borrowing
Base Deficiency to exist.
If a quarterly Scheduled Installment shall become payable on the basis of a
Base Dedicated Percentage of Net Revenue pursuant to this Section 5.06(a)
hereof, then, together with the payment of such Scheduled Installment, Company
shall deliver to Agents a certificate, in the form of Exhibit "E" attached
hereto, setting forth the revenues, expenses and computation of Net Revenue for
the Reference Period to which such Scheduled Installment relates and calculating
the amount of the Scheduled Installment due in accordance with this Section
5.06(a). Company's calculation of Net Revenue and other calculations on the
certificate shall be subject to review by Banks, and if Majority Banks determine
that any portion of such certificate is materially incorrect, the calculation of
Net Revenue and applicable Scheduled Installment shall be subject to adjustment
by Majority Banks. In the event such an adjustment results in the underpayment
by Company of the amount of Scheduled Installment due, then Company shall pay to
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Administrative Agent, for the account of Banks, the amount of such underpayment
within five (5) Business Days following Company's receipt of notice from
Administrative Agent of such underpayment. Further, upon such adjustment all
reasonable third party or out-of-pocket costs incurred by Banks in reviewing the
certificate and adjusting the Net Revenue and Scheduled Installment shall be
borne by Company.
(b) Supplemental Borrowing Base Deficiency Determination. Within
----------------------------------------------------
three (3) Business Days prior to the Business Day that is 180 days following the
effective date of the Borrowing Base Deficiency, Company shall submit to Banks a
certificate (herein called "Supplemental Borrowing Base Deficiency
Certificate"), signed by the chief financial officer of Company, which sets
forth the projected Borrowing Base Deficiency as of (i) 180 days following the
effective date of the Borrowing Base Deficiency and (ii) the anniversary date of
the effective date of the Borrowing Base Deficiency, such Borrowing Base
Deficiency Certificate to include all compilations and derivations relating to
such projections so made by Company. If the Supplemental Borrowing Base
Deficiency Certificate (or Majority Banks' projections if Majority Banks should
disagree with the Supplemental Borrowing Base Deficiency Certificate or if
Company fails to provide such certificate) indicates that the Borrowing Base
Deficiency will not be reduced by sixty percent (60%) or more within 180 days
following the effective date of the Borrowing Base Deficiency, then the Base
Dedicated Percentage shall be automatically adjusted to one hundred percent
(100%) of Net Revenue (less (i) accrued interest due on the Notes during the
applicable Quarterly Period and (ii) Company's actual overhead and general and
administrative expenses (to the extent not already deducted in the determination
of Net Revenue) for the applicable Quarterly Period, which overhead and general
and administrative expenses shall not be materially greater than the overhead
and administrative expenses of Company as reflected in the most recent financial
statements of Company delivered to Banks hereunder) for so long as the Borrowing
Base Deficiency shall exist.
(c) Events of Default. Upon the occurrence of a Borrowing Base
-----------------
Deficiency, an Event of Default shall occur if:
(i) the Borrowing Base Deficiency Certificate provided by Company
to Banks (or the determination made by Majority Banks if Majority Banks disagree
with Company's Borrowing Base Deficiency Certificate or if the Company fails to
provide such certificate) indicates that quarterly Scheduled Installments of one
hundred percent (100%) of Net Revenue is not sufficient to cause the projected
Borrowing Base to exceed the projected Total Outstandings as of the first
anniversary date of the effective date of the Borrowing Base Deficiency unless
------
no later than three (3) Business Days prior to the next ensuing date that a
scheduled installment of interest is due on any of the Subordinated Indebtedness
following the effective date of the Borrowing Base Deficiency Company makes a
principal payment on the Notes in an amount that Agents agree will cause the
projected Borrowing Base to exceed the Total Outstandings as of the date that
such principal payment is made. The notice from Agents to Company of the
existence of a Borrowing Base Deficiency shall state (in addition to the other
matters set forth above) the amount of the principal payment required to be made
by Company to prevent the occurrence of such Event of Default should the
provisions of this subclause (i) be applicable; or
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(ii) the Borrowing Base Deficiency is not reduced by sixty
percent (60%) or more within 180 days following the effective date of the
Borrowing Base Deficiency unless no later than 180 days following the effective
------
date of the Borrowing Base Deficiency Company makes a principal payment on the
Notes in an amount that Agents agree will cause the Borrowing Base Deficiency to
be reduced by sixty percent (60%) as of the date that such principal payment is
made; or
(iii) the Supplemental Borrowing Base Deficiency Certificate
provided by Company to Banks (or the determination made Majority Banks if
Majority Banks disagree with Company's Supplemental Borrowing Base Deficiency
Certificate or if Company fails to provide such certificate) indicates that
quarterly Scheduled Installments of one hundred percent (100%) of Net Revenue is
not sufficient to cause the projected Borrowing Base to exceed the projected
Total Outstandings as of the first anniversary date of the effective date of the
Borrowing Base Deficiency unless no later than three (3) Business Days prior to
------
the next ensuing date that a scheduled installment of interest is due on any of
the Subordinated Indebtedness following 180 days after the effective date of the
Borrowing Base Deficiency Company makes a principal payment on the Notes in an
amount that Agents agree will cause the projected Borrowing Base to exceed the
projected Total Outstandings as of the date that such principal payment is made.
In the event the provisions of this subclause (iii) are applicable, Agents shall
provide notice to Company of the amount of principal payment required to be made
by Company to prevent the occurrence of an Event of Default under this subclause
(iii); or
(iv) the Borrowing Base does not exceed the Total Outstandings as
of the anniversary date of the effective date of the Borrowing Base Deficiency.
5.07. Reserve Report and Gas Report Matters. Each Reserve Report and Gas
-------------------------------------
Report required to be delivered by Company to Banks pursuant to Sections 5.03
and 5.04 shall utilize in its calculation of the Proved Reserves attributable to
the Mineral Properties the economic variables (including, without limitation,
the prevailing price for oil, gas and other hydrocarbons produced from the
Mineral Properties and the projected adjustments of such prices) and economic
variables, assumptions, computations and other parameters respecting the
projection of the Gas Subsidiaries' Loan Value and the Cash Flow attributable to
the operations of the Gas Marketing Subsidiaries agreed to by Company and Agents
and approved by Majority Banks, or if Company and Agent's cannot agree to or
Majority Banks do not approve of such economic variables and Gas Report
parameters by the dates specified below, then such economic variables and Gas
Report parameters shall be designated by Majority Banks, based upon Majority
Banks' determination of the economic variables and parameters then being
utilized by Majority Banks to evaluate Proved Reserves attributable to oil and
gas properties and gas gathering, processing, and marketing operations for
lending transactions similar to the Loan. As to the Reserve Report and Gas
Report required under Section 5.03, Company shall provide Agents its proposed
economic variables for the Reserve Report and Gas Report parameters on or before
February 10 of the year in which such Reserve Report and Gas Report are to be
delivered If Agents agree with such proposed economic
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<PAGE>
variables and parameters, Agents shall consult with Company in an effort to
agree to the proposed economic variables and parameters, and upon such
agreement, Agents shall provide such proposed economic variables and parameters
to Banks (provided, however, if Agents and Company cannot agree to such proposed
economic variables and parameters, such proposed economic variables and
parameters shall be determined by Majority Banks as set forth herein). If
Majority Banks do not provide written notice to Agents disapproving such
proposed economic variables and parameters by March 1, such economic variables
and parameters shall be utilized in the Reserve Report and Gas Report. If
Majority Banks provide written notice to Agents before March 1 disapproving such
economics variables and parameters, Company and Majority Banks shall attempt to
agree to such economic variables and parameters by March 1, such economic
variables and parameters shall be utilized in the Reserve Report and Gas Report.
If Majority Banks provide written notice to Agents before March 1 disapproving
such economic variables and parameters, Company and Majority Banks shall attempt
to agree to such economic variables and parameters by March 1, but if Company
and Majority Banks cannot agree on such economic variables and parameters, such
economic variables and parameters shall be determined by Majority Banks as
provided above. As to the Reserve Report and Gas Report required under Section
5.04, Company and Majority Banks shall agree to such economic variables and Gas
Report parameters within ten (10) Business Days following the delivery to
Company of the notice of the special determination of the Borrowing Base under
Section 5.04. In any event, however, if the ultimate price received by Company
for the sale of any oil, gas or other hydrocarbons produced from the Mineral
Properties is established or determined by or subject to a Hedge Agreement, then
the price for such oil, gas or other hydrocarbons for the purpose of computing
Cash Flow shall be that price established or determined by the production of
oil, gas or other hydrocarbons that is subject to such Hedge Agreement.
ARTICLE 6
---------
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Banks to make the Loan hereunder, Company represents and warrants
to Banks that:
6.01. Organization and Good Standing. Company, CT Operating and each Gas
------------------------------
Marketing Subsidiary is a corporation duly organized and validly existing under
the laws of the jurisdiction of its incorporation and has the corporate power
and authority required to own its properties and assets, and to transact the
business in which it is engaged and that which it proposes to conduct. Company,
CT Operating and each Gas Marketing Subsidiary is qualified or licensed to do
business in those states wherein it owns or leases property or in which the
conduct of its business requires it so to qualify.
6.02. Authorization and Power. Company has the corporate power and
-----------------------
requisite authority to execute, deliver and perform this Loan Agreement, the
Notes and the other Loan Papers to be executed by Company; Company is duly
authorized to, and has taken all corporate action necessary to authorize Company
to, execute, deliver and perform this Loan Agreement, the Notes and such other
Loan Papers and will continue to be duly authorized to perform this Loan
Agreement, the Notes and such other Loan Papers. CT Operating and each Gas
Marketing Subsidiary has the corporate power and requisite authority to execute,
deliver and perform the Guaranty and the other Loan Papers to be executed by CT
Operating and each Gas Marketing
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<PAGE>
Subsidiary; CT Operating and each Gas Marketing Subsidiary is duly authorized
to, and has taken all corporate action necessary to authorize CT Operating and
each Gas Marketing Subsidiary to, execute, deliver and perform the Guaranty and
such other Loan Papers and will continue to be duly authorized to perform the
Guaranty and such other Loan Papers.
6.03. No Conflicts or Consents. Neither the execution and delivery of
------------------------
this Loan Agreement, the Notes or the other Loan Papers, nor the consummation of
any of the transactions herein or therein contemplated, nor compliance with the
terms and provisions hereof or with the terms and provisions thereof, will
contravene or materially conflict with any provision of law, statute or
regulation to which Company, CT Operating or any Gas Marketing Subsidiary is
subject or any judgment, license, order or permit applicable to Company, CT
Operating or any Gas Marketing Subsidiary, or any indenture, loan agreement,
mortgage, deed of trust, or other agreement or instrument to which Company, CT
Operating or any Gas Marketing Subsidiary is a party (including the April 1997
Indenture and the October 1997 Indenture) or by which Company, CT Operating or
any Gas Marketing Subsidiary may be bound, or to which Company, CT Operating or
any Gas Marketing Subsidiary may be subject, or violate any provision of the
charter or bylaws of Company, CT Operating or any Gas Marketing Subsidiary. No
consent, approval, authorization or order of any court or governmental authority
or third party is required in connection with the execution and delivery by
Company, CT Operating or any Gas Marketing Subsidiary of the Loan Papers or to
consummate the transactions contemplated hereby or thereby.
6.04. Enforceable Obligations. This Loan Agreement, the Notes and the other
-----------------------
Loan Papers are the legal and binding obligations of Company, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditors' rights. The Guaranty and the other Loan Papers executed by CT
Operating and each Gas Marketing Subsidiary are the legal and binding
obligations of CT Operating and each Gas Marketing Subsidiary, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditors' rights.
6.05. No Liens. Except for Permitted Liens, all of the properties and
--------
assets of Company and the Subsidiaries are free and clear of all mortgages,
liens, encumbrances and other adverse claims of any nature.
6.06. Financial Condition. Company has delivered to Banks copies of the
-------------------
balance sheet of Company as of December 31, 1996, and the related statements of
income and changes in cash flow for the period ended such date, reviewed by
Arthur Andersen, L.L.P., independent certified public accountants, and copies of
the balance sheets of the Subsidiaries and the related statements of income and
changes in cash flow for the period ending December 31, 1996; such financial
statements are true and correct, fairly present the financial condition of
Company and the Subsidiaries as of such date and have been prepared in
accordance with Generally Accepted Accounting Principles applied on a basis
consistent with that of prior periods; as of the date hereof, there are no
obligations, liabilities or indebtedness (including contingent and indirect
liabilities and obligations or unusual forward or long-term commitments) of
Company and any
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Subsidiary which are (separately or in the aggregate) material and are not
reflected in such financial statements; no changes having a Material Adverse
Effect have occurred in the financial condition or business of Company or any
Subsidiary since December 31, 1996.
6.07. Full Disclosure. There is no material fact that Company has not
---------------
disclosed to Banks which could have a Material Adverse Effect on the properties,
business, prospects or condition (financial or otherwise) of Company or any
Subsidiary. Neither the financial statements referred in Section 6.06 hereof,
nor any certificate or statement delivered herewith or heretofore by Company to
Administrative Agent or any Bank in connection with negotiations of this Loan
Agreement, contains any untrue statement of a material fact or omits to state
any material fact necessary to keep the statements contained herein or therein
from being misleading.
6.08. No Default. No event has occurred and is continuing which constitutes
----------
an Event of Default or which, with the lapse of time or giving of notice or
both, would constitute an Event of Default.
6.09. Material Agreements. Neither Company nor any Subsidiary is in default
-------------------
in any material respect under the April 1997 Indenture or the October 1997
Indenture (including any note or security issued thereunder) or any loan
agreement, indenture, mortgage, security agreement or other material agreement
or obligation to which it is a party or by which any of its properties is bound.
6.10. No Litigation. There are no actions, suits or legal, equitable,
-------------
arbitration or administrative proceedings pending, or to the knowledge of
Company threatened, against Company or any Subsidiary that would, if adversely
determined, have a Material Adverse Effect.
6.11. Burdensome Contracts. Neither Company nor any Subsidiary is a
--------------------
party to, or bound by, any contract which is a burdensome contract having a
Material Adverse Effect on the business, operations or financial condition of
Company or any Subsidiary.
6.12. Estimated Oil and Gas Reserves. Company has heretofore delivered
------------------------------
to Banks copies of all reports requested by Banks (prepared by independent
consulting engineers), which have been obtained by Company and concern the
estimated Proved Reserves and future net revenues attributable to the Mineral
Properties. The statements of fact contained in said reports with respect to
the character and ownership of the Mineral Properties (including, without
limitation, the respective revenue interest and working interest of Company in
the Mineral Properties as stated therein) and the other factual data furnished
by Company as a basis for the estimates set forth therein are true and correct
in all material respects and do not omit any material fact necessary to make
said statements not misleading.
6.13. Use of Proceeds; Margin Stock. The proceeds of the Loan will be used
-----------------------------
by Company solely for the purposes specified in the Section 2.01(d) hereof. None
of such proceeds will be used for the purpose of purchasing or carrying any
"margin stock" as defined in Regulation U or Regulation G of the Board of
Governors of the Federal Reserve System (12 C.F.R. Part 221 and 207), or for the
purpose of reducing or retiring any indebtedness which
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was originally incurred to purchase or carry a margin stock or for any other
purpose which might constitute this transaction a "purpose credit" within the
meaning of such Regulation U or Regulation G, if, as a result of purchasing or
carrying any "margin stock", the proceeds of the Loan would be used, directly or
indirectly, for a purpose, whether immediate, incidental or ultimate, which
violates or which would be inconsistent with Regulation U or Regulation G or
would cause the Loan to be a credit regulated or governed by Regulation U or
Regulation G. Company is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stocks. Neither Company, any Subsidiary
nor any Person acting on behalf of Company has taken or will take any action
which might cause the Notes or any of the other Loan Papers, including this
Agreement, to violate Regulations U or Regulation G or any other regulations of
the Board of Governors of the Federal Reserve System or to violate Section 7 of
the Securities Exchange Act of 1934 or any rule or regulation thereunder, in
each case as now in effect or as the same may hereinafter be in effect. Neither
Company nor any Subsidiary owns "margin stock" except for that described in the
financial statements referred to in Section 6.06 hereof.
6.14. Taxes. All tax returns required to be filed by Company or any
-----
Subsidiary in any jurisdiction have been filed, except for such tax returns for
which the failure to timely file will not result in a Material Adverse Effect,
and all taxes (including mortgage recording taxes), assessments, fees and other
governmental charges upon Company or any Subsidiary or upon any of its or their
properties, income or franchises have been paid prior to the time that such
taxes could give rise to a lien thereon, except for such taxes, for which the
failure to timely pay will not result in a Material Adverse Effect. There is no
proposed tax assessment against Company or any Subsidiary and there is no basis
for such assessment.
6.15. Principal Office, Etc. The principal office, chief executive office
---------------------
and principal place of business of Company is at 810 Houston Street, Fort Worth,
Texas 76102. Company maintains its principal records and books at such address.
6.16. ERISA. (a) No Reportable Event has occurred and is continuing with
-----
respect to any Plan; (b) PBGC has not instituted proceedings to terminate any
Plan; (c) neither Company, any member of the Controlled Group, nor any duly-
appointed administrator of a Plan (i) has incurred any liability to PBGC with
respect to any Plan other than for premiums not yet due or payable or (ii) has
instituted or intends to institute proceedings to terminate any Plan under
Section 4041 or 4041A of ERISA or withdraw from any Multi-Employer Pension Plan
(as that term is defined in Section 3(37) of ERISA); and (d) each Plan of
Company has been maintained and funded in all material respects in accordance
with its terms and with all provisions of ERISA applicable thereto.
6.17. Compliance with Law. Company and the Subsidiaries are in compliance
-------------------
with all laws, rules, regulations, orders and decrees which are applicable to
Company or any Subsidiary, or its or their properties for which the failure to
comply would have a Material Adverse Effect.
6.18. Government Regulation. Neither Company nor any Subsidiary is subject
---------------------
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the
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Investment Company Act of 1940, the Interstate Commerce Act (as any of the
preceding acts have been amended), or any other law (other than Regulation X)
which regulates the incurring by Company or any Subsidiary of indebtedness,
including but not limited to laws relating to common contract carriers or the
sale of electricity, gas, steam, water, or other public utility services.
6.19. Insider. Company is not, and no Person having "control" (as that
-------
term is defined in 12 U.S.C. (S)375(b)(5) or in regulations promulgated pursuant
thereto) of Company is, an "executive officer", "director", or "person who
directly or indirectly or in concert with one or more persons owns, controls, or
has the power to vote more than 10% of any class of voting securities" (as those
terms are defined in 12 U.S.C. (S)375(b) or in regulations promulgated pursuant
thereto) of any Bank, of a bank holding company of which any Bank is a
subsidiary, or of any subsidiary of a bank holding company of which any Bank is
a subsidiary, or, to the best of Company's knowledge, of any bank at which Bank
maintains a correspondent account, or of any bank which maintains a
correspondent account with any Bank.
6.20. No Subsidiaries. Except for Subsidiaries described on Exhibit "F"
---------------
hereto, Company has not formed or acquired any Subsidiary.
6.21. Environmental Matters. Company and any properties or assets owned by
---------------------
Company or any Subsidiary or predecessors of Company or any Subsidiary are not
in violation of, in any material respect, any Environmental Laws, nor is there
existing, pending or, to the best of Company's knowledge, threatened any
investigation or inquiry (other than those the outcome of which would not
involve substantial fees, penalties, or liability to Company, any Subsidiary, or
any predecessors thereto) by any Governmental Authority pursuant to any
Environmental Laws, nor is there existing or pending any remedial obligations
under any Environmental Laws (other than remedial obligations that may be
customary with respect to the operations or business of Company, any Subsidiary
or any predecessor thereto, or that do not involve substantial fines, penalties
or liability on the part of Company, any Subsidiary or any predecessor thereto),
and this representation will continue to be true and correct following
disclosure to the applicable Governmental Authorities of all relevant facts,
conditions and circumstances, if any, pertaining to all assets of Company, any
Subsidiary and predecessors thereto. In the ordinary course of its business,
Company conducts an ongoing review of the effect of Environmental Laws on the
business, operations and properties of Company and the Subsidiaries, in the
course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required
for clean-up or closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, Company has reasonably
concluded that Environmental Laws are unlikely to have a Material Adverse Effect
on Company and the Subsidiaries considered as a whole. Company's breach of any
representation or warranty set forth in this Section 6.21 shall not
automatically cause an Event of Default under Section
-48-
<PAGE>
10.01(b) hereof. Instead, upon becoming aware that Company has breached any
representation or warranty set forth in this Section 6.21, Agents or Majority
Banks may cause to be made a special determination of the Borrowing Base
according to Section 5.04 hereof, in which case that portion of the Mineral
Properties as to which the representation and warranties of this Section 6.21
have been breached shall be excluded from the Mineral Properties evaluated for
the special determination of the Borrowing Base; provided, however, an Event of
Default shall occur if, upon redetermination of the Borrowing Base, the
Borrowing Base as so redetermined has been reduced by more than 25% from the
Borrowing Base in effect immediately prior to such redetermination.
6.22. Title to Properties. Subject only to the Permitted Liens: (a) Company
-------------------
has good and indefeasible title to the Mineral Properties and has marketable
title to all of its other assets and properties; (b) the Gas Marketing
Subsidiaries have good and indefeasible title to all real property owned by such
Subsidiaries and has marketable title to all of their other assets and
properties, (c) all material oil, gas and mineral leases which constitute a
portion of the Mineral Properties are in full force and effect, and (d) Company
has not defaulted on any of its obligations thereunder so as to materially
impair the value of such leases in the aggregate. Company's breach of any
representation or warranty set forth in this Section 6.22 shall not
automatically cause an Event of Default under Section 10.01(b) hereof. Instead,
upon becoming aware that Company has breached any representation or warranty set
forth in this Section 6.22, Majority Banks may cause to be made a special
determination of the Borrowing Base according to Section 5.04 hereof, in which
case that portion of the Mineral Properties as to which the representation and
warranties of this Section 6.22 have been breached shall be excluded from the
Mineral Properties evaluated for the special determination of the Borrowing
Base; provided, however, an Event of Default shall occur if, upon
redetermination of the Borrowing Base, the Borrowing Base as so redetermined has
been reduced by more than 25% from the Borrowing Base in effect immediately
prior to such redetermination.
6.23. Gas Marketing Subsidiaries' Obligations. With respect to the
---------------------------------------
contractual obligations of the Gas Marketing Subsidiaries, in all material
respects: (i) all are in full force and effect and are the valid and legally
binding obligations of the parties thereto and are enforceable in accordance
with their respective terms; (ii) no Gas Marketing Subsidiary is in breach or
default with respect to any of its material obligations; (iii) all material
payments due thereunder have been made; (iv) no other party to any document,
agreement or contract evidencing such obligations (or any successor in interest
thereto) is in breach or default with respect to any of their material
obligations thereunder; and (v) neither any Gas Marketing Subsidiary nor any
other party to any document agreement or contract evidencing such obligations
has given or threatened to give notice of any action to terminate, cancel,
rescind or procure a juridical reformation of any document agreement or contract
evidencing such obligations or any provision thereof.
6.24. Representations and Warranties. Each Request for Borrowing shall
------------------------------
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Company that no Event of Default
exists and that all representations and warranties contained in this Article 8
or in any other Loan Paper are true and correct at and as of the date the
Borrowing is to be made.
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<PAGE>
6.25. Survival of Representations, Etc. All representations and warranties
--------------------------------
by Company herein shall survive delivery of the Notes and the making of the
Loan, and any investigation at any time made by or on behalf of Banks shall not
diminish Banks' right to rely thereon.
ARTICLE 7
---------
CONDITIONS PRECEDENT
--------------------
7.01. Commitment. The obligation of each Bank to make its Advances under
----------
its Commitment is subject to the condition precedent that, on or before the
Closing Date, Administrative Agent shall have received for each Bank the
following, each dated as of the date of such Advance, in form and substance
satisfactory to Administrative Agent and such Bank:
(a) Notes. A duly executed Note of each Bank, in the form of Exhibit
-----
"A" attached hereto with appropriate insertions.
(b) Guaranties. The unconditional Guaranties of the Loan executed by
----------
CT Operating and each of the Gas Marketing Subsidiaries.
(c) Opinion of Company's Counsel. A favorable opinion of Messrs.
----------------------------
Kelly, Hart & Hallman, P.C., counsel for Company, CT Operating and the Gas
Marketing Subsidiaries, as to the matters covered in Exhibit "G" hereto.
(d) Officers' Certificate. A certificate signed by a duly authorized
---------------------
officer of Company stating that (to the best knowledge and belief of such
officer, after reasonable and due investigation and review of matters pertinent
to the subject matter of such certificate): (i) all of the representations and
warranties contained in Article 6 hereof, and the other Loan Papers are true and
correct as of the Closing Date; and (ii) no event has occurred and is continuing
which constitutes an Event of Default or which, with the lapse of time or the
giving of notice or both, would constitute an Event of Default.
(e) Corporate General Certificates. Corporate General Certificates
------------------------------
for Company, CT Operating and the Gas Marketing Subsidiaries, each in the form
attached hereto as Exhibit "H" with the appropriate blanks completed, each dated
as of the Closing Date.
(f) Environmental Certificate. A certificate signed by a duly
-------------------------
authorized officer of Company, stating that Company has reviewed the effect of
Environmental Laws on the Mineral Properties and the properties of the Gas
Marketing Subsidiaries, and associated liabilities and costs, and on the basis
of such review, Company is not, in any material respect, in violation of any
Environmental Laws, and the Company reasonably believes that Environmental Laws
then in effect are unlikely to have a Material Adverse Effect on Company or its
Subsidiaries considered as a whole.
-50-
<PAGE>
(g) Financial Statements. Current financial statements and
--------------------
information of Company and its Subsidiaries in form and substance satisfactory
to Banks, accompanied by a certificate executed by the chief financial officer
of Company, certifying that the attached financial statements are true and
correct in all material respects.
(h) Subsidiaries. A schedule of all Subsidiaries of Company.
------------
(i) Insurance. Certificates of insurance or other evidence
---------
satisfactory to Banks that Company maintains the insurance covering required by
Section 8.13 hereof.
(j) Up-Front Fee. Company shall have paid to Administrative Agent the
------------
fee required to be paid by Company pursuant to that certain fee letter agreement
dated October 23, 1997 among Company, Agents and Arrangers.
(k) Additional Information. Such other information and documents as
----------------------
may reasonably be required by Administrative Agent, either Agent, Banks or their
counsel.
7.02. All Advances. The obligation of each Bank to make any Advance under
------------
this Loan Agreement (including the initial Advance) shall be subject to the
following conditions precedent:
(a) No Defaults or Borrowing Base Deficiency. As of the date of the
----------------------------------------
making of such Advance or conversion, (i) there exists no Event of Default or
event which with notice or lapse of time or both would constitute an Event of
Default and/or (ii) there exists no Borrowing Base Deficiency.
(b) Compliance with Loan Agreement. Company shall have performed and
------------------------------
complied with all agreements and conditions contained herein which are required
to be performed or complied with by Company before or at the date of such
Advance or conversion.
(c) No Material Adverse Change. As of the date of making such Advance
--------------------------
or conversion, no material adverse change has occurred in the business or
financial condition of Company or any of the Subsidiaries.
(d) Borrowing Base Availability. The making of such Advance shall not
---------------------------
cause the Total Outstandings to exceed the Borrowing Base then in effect.
(e) Request for Borrowing. In the case of any Borrowing,
---------------------
Administrative Agent shall have received from Company a Request for Borrowing in
the form of either Exhibit "B", "C" or "D" attached hereto, dated as of the date
of such Borrowing and signed by an authorized officer of Company, all of the
statements of which shall be true and correct, certifying that, as of the date
thereof, (i) all of the representations and warranties of Company contained in
this Loan Agreement and each of the Loan Papers executed by Company are true and
correct, except that, if the Borrowing represents a rollover or conversion of a
prior Borrowing but does not constitute an Advance for new money, Company shall
not be required to warrant or represent
-51-
<PAGE>
that no Material Adverse Effect has occurred in the financial condition or
business of Company or a Subsidiary as provided in Section 6.06, (ii) no event
has occurred and is continuing, or would result from the Borrowing, which
constitutes an Event of Default or which, with the lapse of time or giving of
notice or both, would constitute an Event of Default, and (iii) such other facts
as any Bank may reasonably request.
(f) Representations and Warranties. The representations and
------------------------------
warranties contained in Article 6 hereof shall be true in all respects on the
date of making of such Advance or conversion, with the same force and effect as
though made on and as of that date.
(g) Bankruptcy Proceedings. No proceeding or case under the United
----------------------
States Bankruptcy Code shall have been commenced by or against Company or any of
its Affiliates.
7.03. Amoco Acquisition. In addition to the condition precedent set forth in
-----------------
Section 7.02, the obligation of each Bank to make its Advance to Company to
finance Company's purchase of the Amoco Properties shall be subject to Company's
providing to Agents such assignments and other instruments of conveyance from
Amoco Production Company to Company evidencing that (subject to Permitted Liens)
Company shall have good and defensible title to the Amoco Properties.
ARTICLE 8
---------
AFFIRMATIVE COVENANTS
---------------------
So long as Banks have any commitment to make Advances hereunder, and until
payment in full of the Notes and the performance of the Obligation, Company
agrees that (unless Majority Banks shall otherwise consent in writing):
8.01. Financial Statements, Reports and Documents. Company shall deliver to
-------------------------------------------
Banks each of the following:
(a) Quarterly Statements. As soon as available, and in any event
--------------------
within sixty (60) days after the end of each Quarterly Period (except the last)
copies of the consolidated and consolidating balance sheet of Company and the
Subsidiaries (exclusive of WTW Properties, Inc., CT Operating and Cross Timbers
Trading Company) as of the end of such Quarterly Period, and statements of
income and retained earnings and changes in cash flow of Company and the
Subsidiaries (exclusive of WTW Properties, Inc., CT Operating and Cross Timbers
Trading Company) for that Quarterly Period and for the portion of the Fiscal
Year ending with such period, in each case setting forth in comparative form the
figures for the corresponding period of the preceding fiscal year, all in
reasonable detail, and certified by the chief financial officer of Company as
being true and correct and as having been prepared in accordance with Generally
Accepted Accounting Principles, subject to year-end audit and adjustments;
(b) Annual Statements. As soon as available and in any event within
-----------------
105 days after the close of each fiscal year of Company, copies of the
consolidated and consolidating
-52-
<PAGE>
balance sheet of Company and the Subsidiaries (exclusive of WTW Properties,
Inc., CT Operating and Cross Timbers Trading Company) as of the close of such
fiscal year and statements of income and retained earnings and changes in cash
flow of Company and Subsidiaries (exclusive of WTW Properties, Inc., CT
Operating and Cross Timbers Trading Company) for such fiscal year, in each case
setting forth in comparative form the figures for the preceding fiscal year, all
in reasonable detail and accompanied by an opinion thereon (which shall not be
qualified) of a firm of independent public accountants of recognized national
standing selected by Company and satisfactory to Majority Banks, to the effect
that such financial statements have been prepared in accordance with Generally
Accepted Accounting Principles consistently maintained and applied (except for
changes in which such accountants concur) and that the examination of such
accounts in connection with such financial statements has been made in
accordance with generally accepted auditing standards and, accordingly, includes
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(c) Reserve Reports. Each Reserve Report required to be delivered by
---------------
Company to Banks pursuant to Sections 5.03 and 5.04, and within the time period
prescribed in Section 5.07 for the delivery of each such Reserve Report,
prepared by the petroleum engineering firm of Miller and Lents or such other
firm of independent petroleum engineers approved by Majority Banks, evaluating
the Mineral Properties and prepared in accordance with the customary standards
and procedures of the petroleum industry;
(d) Gas Reports. Each Gas Report required to be delivered by Company
-----------
to Banks pursuant to Sections 5.03 and 5.04, and within the time period
prescribed in Section 5.07 for the delivery of each such Gas Report.
(e) Audit Reports. Promptly upon receipt thereof, one copy of each
-------------
written report submitted to Company by independent accountants in any annual,
quarterly or special audit made, it being understood and agreed that all audit
reports which are furnished to Banks pursuant to this Article shall be treated
as confidential, but nothing herein contained shall limit or impair Banks right
to disclose such reports to any appropriate Governmental Authority or to use
such information to the extent pertinent to an evaluation of the Obligation or
to enforce compliance with the terms and conditions of this Loan Agreement, or
to take any lawful action which Banks deem necessary to protect their interests
under this Loan Agreement;
(f) SEC and Other Reports. Promptly upon their becoming available,
---------------------
one copy of each press release, financial statement, report, notice or proxy
statement sent by Company to its shareholders or partners generally and of each
regular or periodic report, registration statement or prospectus filed by
Company with any securities exchange or the Securities and Exchange Commission
or any successor agency, and of any order issued by any Governmental Authority
in any proceeding to which Company is a party;
(g) Schedule of Subsidiaries. Within ninety (90) days after the end
------------------------
of each fiscal year, a schedule of all Subsidiaries of Company.
-53-
<PAGE>
(h) Quarterly Hedging Reports. Within sixty (60) days after the end
-------------------------
of each Quarterly Period, a statement prepared by Company and certified as being
true and correct by the chief financial officer of Company, setting forth in
reasonable detail all Hedge Agreements to which any production of oil, gas or
other hydrocarbons from the Mineral Properties is then subject, together with a
statement of Company's position with respect to each such Hedge Agreement,
provided, however, if the price of any of the oil, gas or other hydrocarbons
produced from the Mineral Properties is subject to a Hedge Agreement, then
Company shall promptly notify Banks if such Hedge Agreement is terminated,
modified, amended or altered prior to the end of its contractual term, or if
there is an amendment, adjustment or modification of the price of any of the
oil, gas or other hydrocarbons produced from the Mineral Properties that is
subject to or established by a Hedge Agreement.
(i) Dividend Certificate. Upon delivery of the financial statements
--------------------
to be delivered by Company pursuant to Sections 8.01(a) and (b), a certificate
executed by the chief financial officer or chief executive officer of Company
setting forth Company's net cash flow from operations (as that term is used in
Section 9.03 of this Agreement) for each of the preceding four-quarter periods
and the amount of Dividends paid by Company and the amount expended by Company
to repurchase any of its shares of stock during such four-quarter periods.
(j) Trustee/Holder Notices. Promptly upon the receipt thereof, a copy
----------------------
of each written notice, request or statement given or furnished by the Trustee
or any holder of any of the Subordinated Indebtedness which alleges or asserts
that an event of default has occurred under the terms of the April 1997
Indenture or the October 1997 Indenture or with the lapse of time or giving of
notice, or both, an event of default would exist under the terms of the April
1997 Indenture or the October 1997 Indenture or which evidences or indicates
that Trustee or any holder of any of the Subordinated Indebtedness intends to
accelerate the maturity of any of the Subordinated Indebtedness or exercise any
remedies to enforce payment of or collection of any of the Subordinated
Indebtedness.
(k) Compliance Certificate. Upon delivery of the financial statements
----------------------
to be delivered by Company pursuant to Sections 8.01(a) and (b), a certificate
executed by the chief financial officer or chief executive officer of Company,
stating that a review of the activities of Company during such fiscal quarter
has been made under his supervision and that Company has observed, performed and
fulfilled each and every obligation and covenant contained herein and is not in
default under any of the same or, if any such default shall have occurred,
specifying the nature and status thereof, and such certificate shall include all
computations required to show, in sufficient detail, the components of Company's
Consolidated Current Assets and Consolidated Current Liabilities for the purpose
of establishing Company's compliance with the current ratio as set forth in
Section 9.09 hereof; and
(l) Other Information. All information concerning the April 1997
-----------------
Indenture, the October 1997 Indenture, the Subordinated Indebtedness and such
other information concerning the business, properties or financial condition of
Company as Administrative Agent or any Bank shall reasonably request.
-54-
<PAGE>
8.02. Payment of Taxes and Other Indebtedness. Company will, and will cause
---------------------------------------
each of the Subsidiaries to, pay and discharge (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any property belonging to it, before delinquent, (ii) all lawful claims
(including claims for labor, materials and supplies), which, if unpaid, might
become a Lien upon any of its property and (iii) all of its other Indebtedness,
except as prohibited hereunder; provided, however, that Company and each of the
Subsidiaries shall not be required to pay any such tax, assessment, charge, levy
or claims for labor, materials and supplies if and so long as the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings and appropriate accruals and reserves therefor have been
established in accordance with Generally Accepted Accounting Principles.
8.03. Maintenance of Existence and Rights; Conduct of Business. Company
--------------------------------------------------------
will, and will cause each of its Subsidiaries to, preserve and maintain its
corporate existence and all of its rights, privileges and franchises necessary
or desirable in the normal conduct of its business, and conduct its business in
an orderly and efficient manner consistent with good business practices and in
accordance with all valid regulations and orders of any Governmental Authority.
8.04. Notice of Default. Company will furnish to Banks, immediately upon
-----------------
becoming aware of the existence of any condition or event which constitutes an
Event of Default or which, with the lapse of time or giving of notice, or both,
would become an Event of Default, a written notice specifying the nature and
period of existence thereof and the action which Company is taking or proposes
to take with respect thereto.
8.05. Other Notices. Company will, and will cause each of the
-------------
Subsidiaries to, promptly notify Banks of (a) any material adverse change in its
financial condition or its business which is unique to Company specifically, but
not the oil and gas industry generally (unless such change, though not unique to
Company or any Subsidiary, has a Material Adverse Effect on Company), (b) any
default under the April 1997 Indenture, the October 1997 Indenture or any other
material agreement, contract or other instrument to which it is a party or by
which any of its properties are bound, or any acceleration of the maturity of
any of the Subordinated Indebtedness or any other Indebtedness owing by Company
or any Subsidiary in an amount in excess of $100,000, (c) any material adverse
claim against or affecting Company or any Subsidiary or any of its or their
properties in an amount in excess of $250,000, and (d) the commencement of, and
any material determination in, any litigation with any third party or any
proceeding before any Governmental Authority affecting Company or any Subsidiary
which, if determined in a manner contrary or adverse to any of such Persons,
would have a Material Adverse Effect on any of such Persons.
8.06. Compliance with Loan Papers. Company will promptly comply with any
---------------------------
and all covenants and provisions of this Loan Agreement, the Notes and all other
of the Loan Papers. Each Gas Marketing Subsidiary will promptly comply with any
and all covenants and provisions of the Guaranty and all other Loan Papers
executed by such Gas Marketing Subsidiary.
8.07. Compliance with Material Agreements. Company will, and will cause
-----------------------------------
each Subsidiary to, comply in all material respects with all material
agreements, indentures, mortgages
-55-
<PAGE>
or documents binding on it or affecting its properties or business (inclusive of
the April 1997 Indenture and the October 1997 Indenture and any note or security
issued thereunder).
8.08. Operations and Properties. Company will, and will cause each
-------------------------
Subsidiary to, act prudently and in accordance with customary industry standards
in managing or operating its assets, properties, business and investments;
Company will and will cause each Subsidiary to, keep in good working order and
condition, ordinary wear and tear excepted, all of its assets and properties
which are necessary to the conduct of its business; provided Company shall never
be deemed obligated to rework, recomplete, redrill or otherwise maintain any
well or production facility when, in Company's judgment, it would be imprudent
or uneconomic to do so.
8.09. Books and Records; Access. Company will, upon request by any Agent,
-------------------------
give any representative of each Bank access during all business hours to, and
permit such representative to examine, copy or make excerpts from, any and all
books, records and documents in the possession of Company and relating to its
affairs, and to inspect any of the properties of Company or any Subsidiary.
Company will, and will cause each Subsidiary to, maintain complete and accurate
books and records of its transactions in accordance with good accounting
practices.
8.10. Compliance with Law. Company will, and will cause each Subsidiary to,
-------------------
comply with all applicable laws, rules, regulations, and all orders of any
Governmental Authority applicable to it or any of its property, business
operations or transactions, a breach of which could have a Material Adverse
Effect on Company or any Subsidiary.
8.11. Leases. Company will, to the extent failure to do any of the matters
------
set forth below would have a Material Adverse Effect: pay and discharge
promptly, or cause to be paid and discharged promptly, all rentals, delay
rentals, royalties, overriding royalties, payments out of production and other
indebtedness or obligations accruing under, and perform or cause to be performed
each and every act, matter or thing required by each and all of, the oil and gas
leases and all other agreements and contracts constituting or affecting the
Mineral Properties, and do all other things necessary to keep unimpaired its
rights thereunder and prevent any forfeiture thereof or default thereunder, and
operate or cause to be operated such properties in a diligent, careful and
efficient manner and in compliance with all applicable proration and
conservation laws and all applicable rules and regulations of every Governmental
Authority, whether state, federal, municipal or other jurisdiction, from time to
time constituted to regulate the development and operations of oil and gas
properties and the production and sale of oil, gas and other hydrocarbons
therefrom.
8.12. Development and Maintenance. Company will maintain (or cause to be
---------------------------
maintained) the oil and gas leases, wells, units and acreage to which the
Mineral Properties pertain in a prudent manner consistent with good oilfield
practices.
8.13. Insurance. Company will, and will cause each Subsidiary to, maintain
---------
workmen's compensation insurance (but only to the extent any of such Persons has
any employees), liability insurance and insurance on its properties, assets and
business, now owned or hereafter acquired,
-56-
<PAGE>
against such casualties, risks and contingencies, and in such types and amounts,
as are consistent with customary practices and standards of companies engaged in
similar business. In case of any fire, accident or other casualty causing loss
or damage to any properties of Company or any Subsidiary, the proceeds of any
such insurance policies that are not utilized by Company to repair or replace
damaged or destroyed properties or assets which in the aggregate exceed
$1,000,000 in any calendar year shall be paid to Administrative Agent, for the
account of Banks, and applied as a mandatory prepayment on the Loan, as the case
may be, and, if such loss or damage relates to any Mineral Property, the
Borrowing Base shall be reduced by an amount that Company certifies to Banks is
the Borrowing Base value last assigned to such property according to the most
recent Reserve Report, Gas Report and Borrowing Base Certificate delivered to
Banks; provided, however, that Majority Banks shall determine such assigned
value if Majority Banks disapprove of the proposed value assigned to such
properties by Company.
8.14. Authorization and Approvals. Company will, and will cause each
---------------------------
Subsidiary to, promptly obtain, from time to time at its own expense, all such
governmental licenses, authorizations, consents, permits and approvals as may be
required to enable it to comply with its obligations hereunder and under the
other Loan Papers.
8.15. Experienced Management. Company will, and will cause each Subsidiary
----------------------
to, at all times hire and retain management and supervisory personnel adequate
for the proper management, supervision and conduct of its properties, business
and operation.
8.16. ERISA Compliance. Company shall (a) at all times, make prompt payment
----------------
of all contributions required under all Plans and required to meet the minimum
funding standard set forth in ERISA with respect to its Plans; (b) notify
Administrative Agent immediately of any fact, including, but not limited to, any
Reportable Event arising in connection with any of its Plans, which might
constitute grounds for termination thereof by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to administer such
Plan, together with a statement, if requested by Administrative Agent, as to the
reason therefor and the action, if any, proposed to be taken with respect
thereto; and (c) furnish to Administrative Agent, upon its request, such
additional information concerning any of its Plans as may be reasonably
requested.
8.17. Further Assurances. Company will, and will cause each Subsidiary to,
------------------
make, execute or endorse, and acknowledge and deliver or file or cause the same
to be done, all such vouchers, invoices, notices, certifications, additional
agreements, undertakings, or other assurances, and take any and all such other
action, as Majority Banks may, from time to time, deem reasonably necessary or
proper in connection with the Loan Agreement or any of the other Loan Papers, or
the obligations of Company hereunder or thereunder.
8.18. Environmental. Company will provide to Agents copies of all notices
-------------
received from or required to be made to (when sent) any Governmental Authority
(other than notices routinely received or submitted in the ordinary course of
business) relating to the release or threatened release of Hazardous Substances
by Company or any Subsidiary in connection with any of the assets or properties
of Company or the Subsidiaries that is reportable under CERCLA
-57-
<PAGE>
or any other Environmental Law now or hereafter in effect (other than those
reportable releases that do not and will not involve substantial fines,
penalties on part of Company, any Subsidiary or any predecessors thereto).
COMPANY AGREES TO INDEMNIFY AND HOLD BANKS HARMLESS, FROM AND AGAINST ANY AND
ALL FINES, PENALTIES, CLEANUP COSTS AND ASSESSMENTS LEVIED BY ANY GOVERNMENTAL
AUTHORITY, TOGETHER WITH ALL CLAIMS, LIABILITIES, CAUSES OF ACTION, DAMAGES,
COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS BUT EXCLUDING
CLAIMS, LIABILITIES, ETC. ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY BANK), NOW EXISTING OR HEREAFTER ARISING, ASSERTED AGAINST OR
INCURRED BY BANKS ARISING OUT OF OR IN CONNECTION WITH THE PRESENCE, STORAGE,
DISCHARGE, USE, DISPOSAL, TRANSPORTATION OR REMEDIATION OF ANY HAZARDOUS
SUBSTANCES (AS DEFINED IN CERCLA) ON OR ABOUT ANY OF THE ASSETS OR PROPERTIES OF
COMPANY AND THE SUBSIDIARIES IN VIOLATION OF ANY ENVIRONMENTAL LAWS AFFECTING
ANY OF THE ASSETS OR PROPERTIES OF COMPANY OR THE SUBSIDIARIES. THIS INDEMNITY
SHALL SURVIVE THE PAYMENT IN FULL OF THE OBLIGATION. Prior to acquiring any
property or asset (including the purchase of any assets permitted under Section
9.13 hereof), Company shall review the effect of Environmental Laws on the
property or asset to be acquired, and based upon such review, Company shall not
acquire such property or asset if Company would become liable for any then
existing breach or violation, in any material respect, of any Environmental Laws
affecting such property or asset.
8.19. Pledge of Properties. In addition to the other rights and remedies of
--------------------
Banks provided herein, upon the occurrence of a Borrowing Base Deficiency,
Majority Banks may require (i) Company to grant to Banks as security for the
performance by Company of the Notes and the Obligation of Company hereunder, a
valid, enforceable, perfected, first priority and the only Lien in the Mineral
Properties (subject to Permitted Liens), and in all mineral production therefrom
or attributable thereto and in all related accounts, wells, pipes, personal
property and fixtures, to the extent of Company's right, title and interest in
such Mineral Properties and (ii) the Gas Marketing Subsidiaries to grant to
Banks as security for the performance by Company of the Notes and Obligation
hereunder, a valid, enforceable, perfected, first priority and only Lien
(subject to Permitted Liens) in the properties, assets, contracts, contract
rights, accounts and accounts receivables of the Gas Marketing Subsidiaries.
Such Liens described in the foregoing sentence shall be granted pursuant to, and
more fully described in, deeds of trust, mortgages, security agreements,
assignments of production, financing statements and other documents (herein
called the "Collateral Documents") which are in form and substance satisfactory
to Banks and which will be executed by Company and the Gas Marketing
Subsidiaries and delivered to Agents within 30 days following Agents' written
notice requesting Company's and the Gas Marketing Subsidiaries' execution and
delivery of such Collateral Documents.
8.20. Gas Marketing Subsidiaries Guaranties. If Company should subsequently
-------------------------------------
form any additional Gas Marketing Subsidiaries, Company shall cause each such
Gas Marketing Subsidiary to unconditionally guarantee the Loan pursuant to a
form of guaranty agreement substantially in the form of the guaranty agreement
of the Loan executed by CT Operating and
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the Gas Marketing Subsidiaries at the Closing Date, such guaranty agreement to
be delivered to Agents within 30 days following Agents' written notice
requesting such guaranty agreement.
8.21. Guaranty of Cross Timbers Trading Company. If Cross Timbers Trading
-----------------------------------------
Company should subsequently acquire, own or hold material assets, Company shall
cause Cross Timbers Trading Company to unconditionally guarantee the Loan
pursuant to a form of guaranty agreement substantially in the form of the
guaranty agreement of the Loan executed by CT Operating and the Gas Marketing
Subsidiaries at the Closing Date, such guaranty agreement to be delivered to
Agents within 30 days following Agents' written notice requesting such guaranty
agreement.
8.22. Title Materials Covering Amoco Properties. Within 120 days following
-----------------------------------------
the closing of the Amoco Acquisition, Company shall provide to Agents title
opinions and instruments of conveyance that evidence that Company owns good and
defensible title, subject to Permitted Liens, to that portion of the Amoco
Properties comprising at least fifty percent (50%) of the Borrowing Base value
assigned to all of the Amoco Properties.
8.23. Environmental Assessment Covering Amoco Properties. Within 180 days
--------------------------------------------------
following the closing of the Amoco Acquisition, Company shall provide to Agents
an environmental assessment prepared by a firm of independent environmental
engineers acceptable to Agents that cover a material portion of the Amoco
Properties and evidencing that there are no violations of any Environmental Laws
respecting the Amoco Properties that are likely to have a Material Adverse
Effect on Company considered as a whole.
ARTICLE 9
---------
NEGATIVE COVENANTS
------------------
So long as Banks have any commitment to make Advances hereunder, and until
payment in full of the Notes and the performance of the Obligation, Company
agrees that (unless Majority Banks shall otherwise consent in writing):
9.01. Limitation on Indebtedness. Company will not, and will not permit any
--------------------------
Subsidiary to, incur, create, contract, assume, have outstanding, guarantee or
otherwise be or become, directly or indirectly, liable in respect of, any
Indebtedness, except (i) Indebtedness arising out of this Loan Agreement, (ii)
the Subordinated Indebtedness; provided that (a) the principal amount of the
Subordinated Indebtedness issued under the April 1997 Indenture shall not exceed
$125,000,000 and the principal amount of the Subordinated Indebtedness issued
under the October 1997 Indenture shall not exceed $175,0000,000, (b) the
interest rate payable on the Subordinated Indebtedness issued under the April
1997 Indenture shall not exceed nine and one-fourth percent (9 1/4%) per annum
and the interest rate payable on the Subordinated Indebtedness issued under the
October 1997 Indenture shall not exceed eight and three-fourths percent (8
3/4%), and (c) the maturity date of the Subordinated Indebtedness issued under
the April 1997 Indenture shall not be sooner than April 1, 2007 and the maturity
date of the Subordinated Indebtedness issued under the October 1997 Indenture
shall not be sooner than
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November 1, 2009, (iii) Indebtedness, excluding Permitted Margin Debt, secured
by the Permitted Liens, (iv) Permitted Margin Debt, (v) current liabilities for
taxes and assessments incurred in the ordinary course of business and other
liabilities incurred in the ordinary course of business which are currently
being contested in good faith and adequate reserves therefor are being
maintained according to Generally Accepted Accounting Principles, (vi) current
amounts payable or accrued of other claims (other than for borrowed funds or
purchase money obligations) incurred in the ordinary course of business provided
--------
that all such liabilities, accounts and claims shall be promptly paid and
discharged when due or in conformity with customary trade terms, unless such
liabilities are currently being contested in good faith and adequate reserves
therefor are being maintained according to Generally Accepted Accounting
Principles, (vii) Indebtedness of Company and the Subsidiaries not otherwise
included in the preceding subclauses of this Section 9.01 that is reflected in
the audited consolidated financial statement of Company and the Subsidiaries as
of December 31, 1996, (viii) Indebtedness evidenced by or created under the
Lease Agreements, (ix) Indebtedness under any Hedge Agreements that are
permitted according to Section 9.18 hereof, (x) Indebtedness evidenced by any
Interest Swap Agreement, provided such agreement is entered into for business
purposes respecting any then existing Indebtedness of Company, and (xi) such
other Indebtedness of Company and the Subsidiaries (in the aggregate) not
exceeding $5,000,000 at any one time outstanding, exclusive of any Indebtedness
between Company and the Subsidiaries.
9.02. Negative Pledge. Company will not, and will not permit any Subsidiary
---------------
to, create or suffer to exist any mortgage, pledge, security interest,
conditional sale or other title retention agreement, charge, encumbrance or
other Lien (whether such interest is based on common law, statute, other law or
contract) upon any of its property or assets, now owned or hereafter acquired,
except for Permitted Liens.
9.03. Dividends and Distributions. Company shall be permitted to pay
---------------------------
Dividends and repurchase its shares of stock, provided, however, that the
-------- -------
aggregate amount of the Dividends so paid by Company and the amount expended by
Company to repurchase its shares of stock during any four consecutive calendar
quarterly periods shall not exceed twenty-five (25%) of Company's net cash flow
from operations during such four quarterly periods and Company shall be
permitted to repurchase the shares of its stock that is permitted by the lenders
under the Prior Loan Agreement pursuant to that certain consent letter dated
April 14, 1997; provided, further, however, that without the prior consent of
------------------ -------
Majority Banks Company shall pay no Dividends nor shall Company repurchase any
of its shares of stock if (i) an Event of Default exists hereunder, (ii) payment
of such permitted Dividends or stock repurchases would cause an Event of Default
hereunder, or (iii) a Borrowing Base Deficiency exists hereunder. For the
--
purposes of this Section 9.03, the term "net cash flow from operations" shall
mean Company's net income for the four quarterly periods under review as
established by the financial reports delivered by Company to Banks according to
Sections 8.01(a) and 8.01(b) hereof for such quarterly periods, plus
depreciation, depletion and other non-cash charges reflected in such financial
information.
9.04. Limitation on Investments. Company will not, and will not permit any
-------------------------
Subsidiary to, make or have outstanding any Investments in any Person, except
for (i) Investments in Capital Stock of publicly traded companies engaged
primarily in the oil and gas industry, provided that
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the aggregate cost of all Investments which are outstanding pursuant to this
subclause (i) at any time shall not exceed $30,000,000; (ii) Investments in Non-
CT Royalty Trust Units, provided that the aggregate cost of all Investments
which are outstanding pursuant to this subclause (ii) at any time shall not
exceed $15,000,000; (iii) Investments in CRT Units; (iv) Company's stock
ownership in the Subsidiaries, (v) Temporary Cash Investments, and (vi) such
other "cash equivalent" investments as Majority Banks may from time to time
approve; provided, further, that Company will not, and will not permit any
Subsidiary to, make any Investments if (i) an Event of Default exists hereunder
or, with the lapse of time and the giving of notice or both, an Event of Default
would exist hereunder, (ii) the making of such Investment would cause an Event
of Default hereunder, or (iii) a Borrowing Base Deficiency exists hereunder.
9.05. Alteration of Material Agreements. Company will not, and will
---------------------------------
not permit any of the Subsidiaries to, consent to or permit any alterations,
amendments, modifications, releases, waivers or terminations of any material
agreement to which it is a party which would result in a Material Adverse Effect
on Company or any Subsidiary, except that Company may consent to or permit
amendments or modifications to the April 1997 Indenture and the October 1997
Indenture provided that such amendments or modifications do not (i) increase the
principal amount of the Subordinated Indebtedness issued under the April 1997
Indenture above $125,000,000 or increase the rate of interest paid thereon above
nine and one-fourth percent (9 1/4%) per annum, (ii) increase the principal
amount of the Subordinated Indebtedness issued under the October 1997 Indenture
above $175,000,000, or increase the rate of interest payable thereon above eight
and three-fourths percent (8 3/4%), (iii) provide for the final maturity date of
the Subordinated Indebtedness issued under the April 1997 Indenture to occur
prior to April 1, 2007, (iv) provide for the final maturity date of the
Subordinate Indebtedness issued under the October 1997 Indenture to occur prior
to November 1, 2009, (v) affect the definition of the term "Credit Agreement,"
"Credit Agreement Obligations," "Designated Senior Indebtedness," "Designated
Guarantor Senior Indebtedness," "Guarantor Senior Indebtedness," "Indebtedness",
"Senior Indebtedness" or "Subsidiary Guarantee" (as set forth in the April 1997
Indenture or the October 1997 Indenture), (vi) affect any of the subordination,
Payment Blockage Notice or Payment Blockage Period provisions set forth in the
April 1997 Indenture or the October 1997 Indenture, or (vii) effect any other
amendments or modifications that are adverse to Banks.
9.06. Certain Transactions. Company will not, and will not permit any of
--------------------
the Subsidiaries to, enter into any transaction with, or pay any management fees
to, any Affiliate; provided, however, that Company and the Subsidiaries may
enter into transactions with Affiliates upon terms not less favorable to Company
or the Subsidiaries than would be obtainable at the time in comparable
transactions of Company or the Subsidiaries in arms-length dealings with Persons
other than Affiliates.
9.07. Limitation on Sale of Properties. Company will not, and will not
--------------------------------
permit any of the Subsidiaries to, (a) sell, assign, convey, exchange, lease or
otherwise dispose of any of its properties, rights, or assets, whether now owned
or hereafter acquired, except for sales of severed hydrocarbons or used,
obsolete or worn-out equipment which are made in the ordinary course of its
business and for a fair consideration; provided, however, that Company or any
-------- -------
Subsidiary may, for fair consideration, sell, assign, convey, exchange, lease or
otherwise dispose of (i)
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properties, rights, assets or business which are not included for purpose of
determining the Borrowing Base, and (ii) provided no Event of Default exists
hereunder, Mineral Properties which are included for the purpose of determining
the Borrowing Base if the net aggregate proceeds (cash or otherwise) received by
Company and its Subsidiaries from all such sale or sales of such Mineral
Properties do not exceed $35,000,000 during any calendar year or (b) sell,
assign or discount, except for fair consideration, any accounts receivable. As
to such permitted sales of Mineral Properties, (i) the initial $5,000,000 in net
sales proceeds per any calendar year shall be retained by Company without any
obligation for payment to Banks of any portion of such proceeds as a mandatory
principal payment on the Loan, and there shall be no reduction to the Borrowing
Base under Section 5.05 hereof on account of such sales, and (ii) for all
permitted sales in excess of $5,000,000 per any calendar year, the Borrowing
Base shall be reduced by excluding the Mineral Properties that are subject to
such sales according to Section 5.05 and Company shall pay to Banks as a
mandatory principal payment on the Loan such portion of the net proceeds derived
from such sales as is necessary to cause the then Total Outstandings to not
exceed the Borrowing Base then in effect after redetermination under Section
5.05 on account of such sales. The provisions of this Section 9.07 shall not
apply to (i) the Trade Properties or the Defect Properties, or (ii) any
transaction pursuant to which Company transfers its interest (or a portion
thereof) in any of the Mineral Properties that would entitle the assignee of
such properties to receive certain credits against its federal income tax under
Section 29 of the Internal Revenue Code of 1986, as amended, with Company
retaining or receiving an interest in such properties, and a portio of the
proceeds received by Company upon the transfer of its interest (or a portion
thereof) in such properties is attributable to the Section 29 tax credits
allocable to such properties (such a transaction is herein called a "Section 29
Transaction"). Company may sell, assign, exchange or otherwise dispose of its
interest (or a portion thereof) in any of the Mineral Properties pursuant to a
Section 29 Transaction with consent of Majority Banks, whereupon Majority Banks
shall approve any adjustments to the Borrowing Base after giving effect to such
Section 29 Transaction and the value to be assigned to the interest in the
Mineral Properties retained or received by Company.
9.08. Name, Fiscal Year and Accounting Method. Company will not, and will
---------------------------------------
not permit any of the Subsidiaries to, change its name, fiscal year or method of
accounting.
9.09. Current Ratio. Company will not permit the ratio of its Consolidated
-------------
Current Assets to its Consolidated Current Liabilities, as of any date, to be
less than 1.00 to 1.00.
9.10. Liquidation, Mergers, Consolidations and Dispositions of Substantial
--------------------------------------------------------------------
Assets. Company will not, and will not permit any of the Subsidiaries to,
- - ------
dissolve or liquidate, or become a party to any merger or consolidation if
Company is not the surviving corporate entity, or sell, transfer, lease or
otherwise dispose of all or any substantial part of its property or assets or
business, provided, however, that the foregoing shall not operate to prevent the
merger or consolidation of any Subsidiary into Company or a sale, transfer or
lease of assets by any Subsidiary to Company or the dissolution of a Subsidiary
if the assets of such Subsidiary are transferred to Company or another wholly-
owned Subsidiary.
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9.11. Lines of Business. Company will not, directly or indirectly, engage
-----------------
in any business other than the acquisition, exploration, development, operation,
management or resale of oil and gas properties and the processing, marketing and
transportation of production therefrom and the ownership, leasing and management
of real estate as conducted by WTW Properties, Inc.
9.12. No Amendments. Company will not, and will not permit any Subsidiary
-------------
to, amend its agreement of limited partnership, or its articles of
incorporation, as the case may be, if such amendment would result in a Material
Adverse Effect on Company or any Subsidiary.
9.13. Purchase of Substantial Assets. Company will not, and will not permit
------------------------------
any Subsidiary to, purchase, lease or otherwise acquire all or substantially all
of the assets of any other Person, if, as a result of such transaction, Company
or any Subsidiary would incur, assume or otherwise become liable for any
Indebtedness which is not otherwise permitted under Section 9.01 hereof, or any
of such Persons would knowingly become responsible or liable for any presently
existing breach or violation, in any material respect, of any Environmental Laws
applicable to the assets so purchased, leased or acquired, and provided further,
Company will not, and will not permit any Subsidiary to, purchase, lease or
acquire any of such assets if (i) an Event of Default exists hereunder or, with
the lapse of time or the giving of notice or both, an Event of Default would
exist hereunder, (ii) such purchase, lease or acquisition would cause an Event
of Default hereunder, or (iii) a Borrowing Base Deficiency exists hereunder.
9.14. Guaranties. Company will not, and will not permit any Subsidiary to,
----------
become or be liable in respect of any Guaranty, except for (i) the Guaranty of
Company of certain existing outstanding letters of credit of CT Operating issued
by NationsBank of Texas, N.A. or any extensions, renewals or replacements
thereof, (ii) the Guaranty of the Subsidiaries of the Obligation of Company
under this Loan Agreement; (iii) the Guaranty by Company of the trade payables
of the Subsidiaries which are incurred in the ordinary course of such
Subsidiaries' business, provided however, that such Guaranty shall not exceed
$15,000,000 in the aggregate at any one time outstanding, (iv) the Guaranty by
Company of the obligations of Timberland respecting its compressor station and
interconnect facility, (v) the Guaranty by Company of the Lease Agreements, (vi)
the Guaranty by Company of other equipment leases of its Subsidiaries not
otherwise included in subclauses (ii), (iii) or (iv) above, up to an aggregate
face amount for all of such equipment leases of $5,000,000 during any calendar
year, and (vii) the Guaranty by the Subsidiaries of the Subordinated
Indebtedness that is defined as the "Subsidiary Guarantee" in the April 1997
Indenture and the October 1997 Indenture.
9.15. Leases; Sale and Leaseback. Company will not, and will not
--------------------------
permit any Subsidiary to, enter into any arrangement with any Person (including,
without limitation, any insurance company, bank or trustee) pursuant to which it
will lease, as lessee, any property which it owned as of the date hereof and
which it sold, transferred or otherwise disposed of to such other Person.
9.16. Restriction on Loans. Without the prior written consent of Majority
--------------------
Banks, which consent shall not be unreasonably withheld, Company shall not make
any loans or advances to
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any Person, including any Subsidiary or Affiliate of Company, which are not in
the ordinary course of Company's business.
9.17. Speculative Trading. Company shall not, and will not permit any
-------------------
Subsidiary to, enter into or become bound by any transaction respecting
Speculative Trading or make any payment on account of any Speculative Trading.
9.18. Hedging Agreements. Company shall not enter into or become bound
------------------
by any Hedge Agreement that covers (i) more than 100% of Company's projected
production from the Proved Developed Producing Reserves attributable to the
Mineral Properties during the 18-month period ensuing after the date such Hedge
Agreement is entered into or (ii) more than 75% of Company's projected
production from the Proved Developed Producing Reserves attributable to the
Mineral Properties for any period after the 18-month period following the date
such Hedge Agreement is entered into.
9.19. Prepayment or Redemption of Subordinated Indebtedness. Without
-----------------------------------------------------
the prior written consent of Majority Banks, Company shall not, and will not
permit any Subsidiary to, prepay (in whole or in part) any principal due on the
Subordinated Indebtedness or redeem (in whole or in part) the Subordinated
Indebtedness or exercise Company's rights of defeasance as set forth in Article
XI of the April 1997 Indenture or the October 1997 Indenture. If Company
requests the consent of Majority Banks to do any of the foregoing, then Majority
Banks shall have the right to request a redetermination of the Borrowing Base
according to Section 5.04 hereof, which redetermination of the Borrowing Base
shall be in addition to any other redetermination of the Borrowing Base which
may be made pursuant to Section 5.04 of this Agreement. In the case of such
redetermination of the Borrowing Base, Majority Banks in their discretion may
require a Reserve Report prepared by a firm of petroleum engineers selected by
Company and approved by Majority Banks or prepared by a petroleum engineer
employed by Company. Notwithstanding the foregoing, provided that no Event of
Default exists or will occur on the account of such redemption, and no Borrowing
Base Deficiency exists, without the prior consent of Majority Banks, Company may
use proceeds derived from the public offering of any of its common stock, other
equity securities of Company or trust equity securities of Company to redeem up
to 33-1/3% of the Subordinated Indebtedness issued under the April 1997
Indenture as prescribed in the April 1997 Indenture and to redeem up to 33 1/3%
of the Subordinated Indebtedness issued under the October 1997 Indenture as
prescribed in the October 1997 Indenture.
9.20. Payments Respecting Permitted Margin Debt. If Company is fully
-----------------------------------------
indebted under all of its Permitted Margin Debt, and if, pursuant to any
required margin calls or collateral maintenance provisions in any agreements
creating or evidencing any Permitted Margin Debt that is secured by Capital
Stock of publicly traded companies engaged primarily in the oil and gas
industry, Company is required to make a mandatory principal payment on such
Permitted Margin Debt, Company shall not use proceeds from the Loan to make
such principal payment on such Permitted Margin Debt without the prior written
consent of Majority Banks.
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9.21. Strict Compliance. If any action or failure to act by Company
-----------------
violates any covenant or obligation of Company contained herein, then such
violation shall not be excused by the fact that such action or failure to act
would otherwise be required or permitted by any covenant (or exception to any
covenant) other than the covenant violated.
ARTICLE 10
----------
EVENTS OF DEFAULT
-----------------
10.01. Events of Default. An "Event of Default" shall exist if any one
-----------------
or more of the following events (herein collectively called "Events of Default")
shall occur and be continuing:
(a) Company shall fail to pay when due any principal of any Note and
such failure to pay principal shall continue for a period of one (1) day or
Company shall fail to pay when due any interest on any Note or any fee, expense
or other payment required hereunder and such failure to pay such interest, fee,
expense or other payment (excluding principal on any Note) shall continue for a
period of five (5) days;
(b) any representation or warranty made under this Loan Agreement
(except Section 6.21 or 6.22), or any of the other Loan Papers, or in any
certificate or statement furnished or made to Banks pursuant hereto or in
connection herewith or with the Loans hereunder, shall prove to be untrue or
inaccurate in any material respect as of the date on which such representation
or warranty is made;
(c) default shall occur in the performance of any of the covenants
or agreements of Company or any Subsidiary contained herein, or in any of the
other Loan Papers and such default shall continue unremedied for a period of
thirty (30) days or, if such default relates to the covenant set forth in
Section 9.09 hereof, for a period of ten (10) days following Company's actual
knowledge of the existence of such default or Company's receipt of a financial
statement which evidences that such default exists, whichever is the first to
occur;
(d) default shall occur in the payment of any Indebtedness of
Company or any Subsidiary in excess of $2,000,000 in the aggregate or default
shall occur in respect of any material obligation under any note, loan agreement
or credit agreement relating to any such Indebtedness and such default shall
continue for more than the period of grace, if any, specified therein; or any
such Indebtedness shall become due before its stated maturity by acceleration of
the maturity thereof or shall become due by its terms and shall not be promptly
paid or extended; or any event or occurrence shall exist which may cause such
Indebtedness to become due prior to its stated maturity date even if such
maturity date is not accelerated by the holder of such Indebtedness;
(e) any of the Loan Papers shall cease to be legal, valid, binding
agreements enforceable against Company in accordance with the respective terms
thereof or shall in any way be terminated or become or be declared ineffective
or inoperative or shall in any way whatsoever
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cease to give or provide the respective liens, security interest, rights,
titles, interest, remedies, powers or privileges, if any, intended to be created
thereby;
(f) Company or any Subsidiary shall (i) apply for or consent to the
appointment of a receiver, trustee, custodian, intervenor or liquidator of
itself or of all or a substantial part of any of such Person's assets, (ii) file
a voluntary petition in bankruptcy or admit in writing that any of such Persons
is unable to pay its debts as they become due, (iii) make a general assignment
for the benefit of creditors, (iv) file a petition or answer seeking
reorganization of an arrangement with creditors or to take advantage of any
bankruptcy or insolvency laws, (v) file an answer admitting the material
allegations of, or consent to, or default in answering, a petition filed against
any of such Persons in any bankruptcy, reorganization or insolvency proceeding,
or (vi) take corporate or partnership action for the purpose of effecting any of
the foregoing;
(g) an involuntary petition or complaint shall be filed against
Company or any Subsidiary seeking bankruptcy or reorganization of Company or
such Subsidiary or the appointment of a receiver, custodian, trustee, intervenor
or liquidator of Company or such Subsidiary, or all or substantially all of any
of such Person's assets, and such petition or complaint shall not have been
dismissed within 60 days of the filing thereof; or an order, order for relief,
judgment or decree shall be entered by any court of competent jurisdiction or
other competent authority approving a petition or complaint seeking
reorganization of Company or any Subsidiary or appointing a receiver, custodian,
trustee, intervenor or liquidator of Company or any Subsidiary, or of all or
substantially all of any of such Person's assets, and such order, judgment or
decree shall continue unstayed and in effect for a period of thirty (30) days;
(h) any final judgment(s) for the payment of money in excess of the
sum of $2,000,000 in the aggregate shall be rendered against Company or any
Subsidiary and such judgment or judgments shall not be satisfied or discharged
at least ten (10) days prior to the date on which any of its assets could be
lawfully sold to satisfy such judgment;
(i) both the following events shall occur: (i) either (x) proceedings
shall have been instituted to terminate, or a notice of termination shall have
been filed with respect to, any Plans (other than a Multi-Employer Pension Plan
as that term is defined in Section 3(37) of ERISA) by Company, any Subsidiary,
any member of the Controlled Group, PBGC or any representative of any thereof,
or any such Plan shall be terminated, in each case under Section 4041 or 4042 of
ERISA, or (y) a Reportable Event, the occurrence of which would cause the
imposition of a lien under Section 4062 of ERISA, shall have occurred with
respect to any Plan (other than a Multi-Employer Pension Plan as that term is
defined in Section 3(37) of ERISA) and be continuing for a period of sixty (60)
days; and (ii) the sum of the estimated liability to PBGC under Section 4062 of
ERISA and the currently payable obligations of Company or any Subsidiary to fund
liabilities (in excess of amounts required to be paid to satisfy the minimum
funding standard of Section 412 of the Code) under the Plan or Plans subject to
such event shall exceed ten percent (10%) of Consolidated Tangible Net Worth at
such time;
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(j) any or all of the following events shall occur with respect to any
Multi-Employer Pension Plan (as that term is defined in Section 3(37) of ERISA)
to which Company or any Subsidiary contributes or contributed on behalf of its
employees: (i) Company or any Subsidiary incurs a withdrawal liability under
Section 4201 of ERISA; or (ii) any such plan is "in reorganization" as that term
is defined in Section 4241 of ERISA; or (iii) any such Plan is terminated under
Section 4041A of ERISA, and Majority Banks determine in good faith that the
aggregate liability likely to be incurred by Company or any Subsidiary, as a
result of all or any of the events specified in Subsections (i), (ii) and (iii)
above occurring, shall have a Material Adverse Effect;
(k) a Borrowing Base Deficiency has occurred and any Event of Default
specified in Section 5.06(c) hereof shall occur;
(l) an event of default shall exist under the terms of the April 1997
Indenture or the October 1997 Indenture;
(m) either the Trustee or any holder of any of the Subordinated
Indebtedness shall do any of the following: (i) accelerate the maturity of any
of the Subordinated Indebtedness, (ii) pursue or exercise any remedies provided
for in the April 1997 Indenture or the October 1997 Indenture, (iii) sue for or
collect any amount due on any of the Subordinated Indebtedness or (iv) file a
petition or complaint against Company seeking bankruptcy or reorganization of
Company or the appointment of a receiver, custodian, trustee, intervenor or
liquidator of Company;
(n) without the prior consent of all Banks, Company or any Subsidiary
shall prepay (in whole or in part) any of the Subordinated Indebtedness or
redeem (in whole or in part) any of the Subordinated Indebtedness or Company
shall exercise its rights of defeasance as set forth in Article XII of the April
1997 Indenture or the October 1997 Indenture, unless such purchase, prepayment,
redemption or exercise of rights of redemption is otherwise permitted according
to Section 9.19 hereof;
(o) Company and/or the Gas Marketing Subsidiaries shall fail to
execute and deliver to Agents the Collateral Documents within 30 days following
Agents' written notice to Company and/or the Gas Marketing Subsidiaries
requesting Company to execute and deliver the Collateral Documents;
(p) a Change of Control shall occur; or
(q) any Event of Default specified in Section 6.21 or 6.22 hereof
shall occur.
10.02. Remedies Upon Event of Default. If an event of Default shall have
------------------------------
occurred and be continuing, then Administrative Agent shall, at the request of
Majority Banks, and may, with the consent of Majority Banks, exercise any one or
more of the following rights and remedies, and any other remedies provided in
any of the Loan Papers, as Majority Banks in their sole
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discretion, may deem necessary or appropriate: (i) terminate Banks' Commitment
to lend hereunder, whereupon the same shall immediately terminate, (ii) declare
the principal of, and all interest then accrued on, the Notes and any other
liabilities hereunder to be forthwith due and payable, whereupon the same shall
forthwith become due and payable without presentment, demand, protest, notice of
default, notice of acceleration or of intention to accelerate or other notice of
any kind all of which Company hereby expressly waives, anything contained herein
or in the Notes to the contrary notwithstanding, (iii) reduce any claim to
judgment, and/or (iv) without notice of default or demand, pursue and enforce
any of Banks' rights and remedies under the Loan Papers, or otherwise provided
under or pursuant to any applicable law or agreement; provided, however, that if
any Event of Default specified in Sections 10.01(f) and (g) shall occur, the
principal of, and all interest on, the Notes and other liabilities hereunder
shall thereupon become due and payable concurrently therewith, and Banks'
obligations to lend shall immediately terminate hereunder, without any further
action by Administrative Agent or any Bank and without presentment, demand,
protest, notice of default, notice of acceleration or of intention to accelerate
or other notice of any kind, all of which Company hereby expressly waives.
10.03. Performance by Banks. Should Company fail to perform any covenant,
--------------------
duty or agreement contained herein or in any of the Loan Papers, Administrative
Agent, either Agent or Banks may, at their option, perform or attempt to perform
such covenant, duty or agreement on behalf of Company. In such event, Company
shall, at the request of Administrative Agent or Banks, promptly pay any amount
expended by Administrative Agent or Banks in such performance or attempted
performance to Administrative Agent at its principal office in New York, New
York, together with interest thereon at the highest lawful rate from the date of
such expenditure until paid. Notwithstanding the foregoing, it is expressly
understood that neither Banks nor Administrative Agent assume any liability or
responsibility for the performance of any duties of Company hereunder or under
any of the Loan Papers or other control over the management and affairs of
Company.
ARTICLE 11
----------
AGENCY PROVISIONS
-----------------
11.01. Appointment and Authorization. Each Bank hereby irrevocably
-----------------------------
appoints and authorizes Administrative Agent and Syndication Agent, as its
Agent, to take such action on its behalf and to exercise such powers under the
Loan Papers as are delegated to such Agent by the terms thereof, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Loan Agreement, Agents shall not
have any duties or responsibilities except those expressly set forth herein, or
any fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Loan Papers or otherwise exist against Agents. With
respect to its Commitment, the Advances made by it and the Notes issued to it,
each Agent shall have the same rights and powers under this Loan Agreement as
any other Bank and may exercise the same as though it were not an Agent; and the
term "Bank" or "Banks" shall, unless otherwise expressly indicated, include each
Agent in its capacity as a Bank. Each
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Agent 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, Company,
and any Person which may do business with Company, all as if such Agent were not
an Agent hereunder and without any duty to account therefor to Banks.
11.02. Consultation with Counsel. Banks agree that each Agent may consult
-------------------------
with legal counsel selected by it and shall not be liable for any action taken
or suffered in good faith by them in accordance with the advice of such counsel.
11.03. Documents. Neither Agent shall be under a duty to examine or pass
---------
upon the validity, effectiveness, enforceability, genuineness or value of any of
the Loan Papers or any other instrument or document furnished pursuant thereto
or in connection therewith, and each Agent shall be entitled to assume that the
same are valid, effective, enforceable and genuine and what they purport to be.
11.04. Resignation. Subject to the appointment and acceptance of a
-----------
successor Agent as provided below, any Agent may resign at any time by giving
written notice thereof to Banks and Company. Upon any such resignation, Majority
Banks (or the majority in number of Banks with respect to any removal for cause)
shall have the right to appoint a successor Agent, subject to Company's consent,
not to be unreasonably withheld, if the successor Agent is not a Bank. If no
successor Agent shall have been so appointed by Majority Banks (or the majority
in number of Banks with respect to any removal for cause) 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 Banks, appoint
a successor Agent, subject to Company's consent, not to be unreasonably
withheld, if such successor Agent is not a Bank. 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 hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article 11 shall continue
in effect for its benefit in respect to any actions taken or omitted to be taken
by it while it was acting as Agent.
11.05. Responsibility. It is expressly understood and agreed that the
--------------
obligations of each Agent under the Loan Papers are only those expressly set
forth in the Loan Papers and that each Agent shall be entitled to assume that no
Event of Default or event which, with the giving of notice or lapse of time, or
both, would constitute an Event of Default has occurred and is continuing,
unless such Agent has actual knowledge of such fact or has received notice from
a Bank that such Bank considers that an Event of Default or such event has
occurred and is continuing and specifying the nature thereof. Neither Agent nor
any of its directors, officers or employees shall be liable for any action taken
or omitted to be taken by it under or in connection with the Loan Papers, except
for its own gross negligence or willful misconduct. Neither Agent shall incur
any liability under or in respect of any of the Loan Papers by acting upon any
notice, consent, certificate, warranty or other paper or instrument reasonably
believed by it to be genuine or authentic or to be signed by the proper party or
parties, or with respect to anything which it
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may do or refrain from doing in the reasonable exercise of its judgment, or
which may seem to it to be reasonably necessary or desirable under the
circumstances.
The relationship between each Agent and each Bank is only that of agent and
principal and has no fiduciary aspects, and each Agent's duties hereunder are
acknowledged to be only ministerial and not involving the exercise of discretion
on its part. Nothing in this Loan Agreement or elsewhere contained shall be
construed to impose on any Agent any duties or responsibilities other than those
for which express provision is herein made. In performing its duties and
functions hereunder, neither any Agent assumes and shall not be deemed to have
assumed, and hereby expressly disclaims, any obligation or responsibility toward
or any relationship of agency or trust with or for, Company. As to any matters
not expressly provided for by this Loan Agreement, neither Agent shall 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 Majority Banks and such
instructions shall be binding upon all Banks and all holders of Notes; provided,
--------
however, that neither Agent shall be required to take any action which is
- - -------
contrary to this Loan Agreement or applicable law.
11.06. Notices of Event of Default. In the event that any Agent shall
---------------------------
have acquired actual knowledge of any Event of Default or of an event which,
with the giving of notice or the lapse of time, or both, would constitute an
Event of Default, such Agent shall promptly give notice thereof to the other
Banks.
11.07. Independent Investigation. Each Bank severally represents and
-------------------------
warrants to each Agent that it has made its own independent investigation and
assessment of the financial condition and affairs of Company in connection with
the making and continuation of its participation in the Loans hereunder and has
not relied exclusively on any information provided to such Bank by such Agent in
connection herewith, and each Bank represents, warrants and undertakes to each
Agent that it shall continue to make its own independent appraisal of the
creditworthiness of Company while the Loans are outstanding or its commitment
hereunder is in force.
11.08. INDEMNIFICATION. BANKS AGREE TO INDEMNIFY EACH AGENT (TO THE EXTENT
---------------
NOT REIMBURSED BY COMPANY), RATABLY ACCORDING TO THE PROPORTION THAT THE
RESPECTIVE PRINCIPAL AMOUNTS OF THE NOTE HELD BY EACH OF THEM BEARS TO THE SUM
OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES, FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES, OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (OTHER THAN
THOSE ARISING SOLELY BY REASON OF AGENT BEING A BANK) WHICH MAY BE IMPOSED ON,
INCURRED BY OR ASSERTED AGAINST SUCH AGENT IN ANY WAY RELATING TO OR ARISING OUT
OF THE LOAN PAPERS OR ANY ACTION TAKEN OR OMITTED BY SUCH AGENT UNDER THE LOAN
PAPERS, PROVIDED THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES OR
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DISBURSEMENTS RESULTING FROM ANY AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11.09. Forwarding of Information to Banks. Unless otherwise specified in
----------------------------------
this Loan Agreement, each Agent agrees to deliver or cause to be delivered to
each Bank, within two (2) Business Days, copies of all notices, reports,
certificates and other information received from Company or any of its
Subsidiaries in connection with this Loan Agreement or any other Loan Papers if
such notices, reports, certificates or other such information was not otherwise
delivered to such Bank by Company or any other Agent.
11.10. Benefit of Article 11. The agreements contained in this Article 11
---------------------
are solely for the benefit of Agents and Banks, and are not for the benefit of,
or to be relied upon by, Company, or any third party.
ARTICLE 12
----------
SPECIAL PROVISIONS FOR EURODOLLAR AND CD LOANS; YIELD PROTECTION
----------------------------------------------------------------
12.01. Inadequacy of Pricing. If
---------------------
(A) with respect to an Interest Period for any Eurodollar Borrowing:
(i) Administrative Agent determines that, by reason of
circumstances affecting the interbank eurodollar market generally, deposits in
Dollars (in the applicable amounts) are not being offered to the Reference Banks
in the interbank eurodollar market for such Interest Period, or
(ii) Majority Banks advise Administrative Agent that the InterBank
Offered Rate as determined by Administrative Agent will not adequately and
fairly reflect the cost to such Banks of maintaining or funding the Eurodollar
Borrowing for such Interest Period; or
(B) with respect to an Interest Period for any CD Borrowing:
(i) no timely quotations of the applicable rate are offered to
Reference Banks by certificate of deposit dealers for their certificates of
deposit as contemplated herein, or
(ii) Majority Banks advise Administrative Agent that the CD Quoted
Rate as determined by Administrative Agent will not adequately and fairly
reflect the cost to such Banks of maintaining or funding the CD Borrowing,
(such Eurodollar Advances or CD Advances that become subject to the foregoing
provisions of this Section 12.01 are herein called the "Affected Borrowings"),
then Administrative Agent shall forthwith give notice thereof to Company and
Banks, whereupon until Administrative Agent notifies Company that the
circumstances giving rise to such suspension no longer exist, (a) the obligation
of Banks to make the Affected Borrowings shall be suspended and (b) Company
shall
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either (i) repay in full the then-outstanding principal amount of the Affected
Borrowings, together with accrued interest thereon on the last day of the then-
current Interest Period applicable to such Affected Borrowings, or (ii) convert
such Affected Borrowings to Floating Base Borrowings or any other Borrowing that
is not an Affected Borrowing in accordance with Section 2.02(c) of this Loan
Agreement on the last day of the then-current Interest Period applicable to each
such Affected Borrowing.
12.02. Illegality. If, after the date of this Loan Agreement, the adoption
----------
of any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank to make,
maintain or fund its Eurodollar Advances or CD Advances, and such Bank shall so
notify Administrative Agent, Administrative Agent shall forthwith give notice
thereof to Banks and Company. Before giving any notice pursuant to this Section
12.02 that affects Eurodollar Advances, such Bank shall designate a different
Eurodollar lending office if such designation will avoid the need for giving
such notice and will not be otherwise disadvantageous to any non-trivial extent
to such Bank (as determined in good faith by such Bank) (the Eurodollars
Advances or CD Advances that become subject to the provisions of this Section
12.02 are herein called "Affected Borrowings"). Upon receipt of such notice,
Company shall either (i) repay in full the then outstanding principal amount of
the Affected Borrowings of such Bank, together with accrued interest thereon, or
(ii) convert such Affected Borrowings to or any other Borrowing that is not an
Affected Borrowing, on either (a) the last day of the then current Interest
Period applicable to such Affected Borrowings if such Bank may lawfully continue
to maintain and fund such Affected Borrowings to such day or (b) immediately if
such Bank may not lawfully continue to fund and maintain such Affected
Borrowings to such day.
12.03. Increased Costs for Loans. If any Governmental Authority, central
-------------------------
bank or other comparable authority, shall at any time impose, modify or deem
applicable any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System but excluding any reserve requirement
included in the Eurodollar or CD Reserve Requirement of such Bank), special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank, or shall impose on any Bank (or its
Eurodollar lending office) or the interbank eurodollar market any other
condition affecting its Eurodollar Advances, CD Advances, the Note or its
obligation to make Eurodollar Advances; and the result of any of the foregoing
is to increase the cost to such Bank of making or maintaining its Eurodollar
Advances, CD Advances, or to reduce the amount of any sum received or receivable
by such Bank under this Agreement, or under the Note, by an amount deemed by
such Bank to be material (the Eurodollars Advances or CD Advances that become
subject to the provisions of this Section 12.03 are herein called "Affected
Borrowings"), then, within five (5) days after demand by such Bank (with a copy
to Administrative Agent) Company shall pay to Administrative Agent, for the
account of such Bank, such additional amount or amounts as will compensate such
Bank for such increased cost or reduction. Each Bank will promptly notify
Company and Administrative Agent of any event of which it has knowledge,
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occurring after the date hereof, which will entitle such Bank to compensation
pursuant to this Section. A certificate of any Bank claiming compensation under
this Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. If any Bank
demands compensation under this Section, then Company may at any time, upon at
least five (5) Business Days' prior notice to such Bank through Administrative
Agent, either (i) repay in full the then outstanding Affected Brrowings of such
Bank, together with accrued interest thereon to the date of prepayment or (ii)
convert such Affected Borrowings to or any other Borrowing that is not an
Affected Borrowing in accordance with the provisions of this Loan Agreement;
provided, however, that Company shall be liable for any Consequential Loss
arising pursuant to such actions.
12.04. Effect on Other Loans. If notice has been given pursuant to
---------------------
Section 5.02 or Section 5.03 requiring the Affected Borrowings of any Bank to be
repaid or converted, then unless and until such Bank notifies Company that the
circumstances giving rise to such repayment no longer apply, all Advances or any
other Borrowing that are not Affected Borrowings shall be Advances. If such
Bank notifies Company that the circumstances giving rise to such repayment no
longer apply, Company may thereafter select Advances to be Borrowings that were
formerly Affected Borrowings in accordance with Section 2.02(c) of this Loan
Agreement.
12.05. Payments Not At End of Interest Period. If Company makes any
--------------------------------------
payment of principal with respect to any Eurodollar Borrowing or CD Borrowing on
any day other than the last day of an Interest Period applicable to such
Eurodollar Borrowing or CD Borrowing, then Company shall reimburse each Bank on
demand the Consequential Loss incurred by it as a result of the timing of such
payment. A certificate of each Bank setting forth the basis for the
determination of the amount of Consequential Loss shall be delivered to Company
through Administrative Agent and shall, in the absence of manifest error, be
conclusive and binding. Any conversion of (i) a Eurodollar Borrowing to a CD
Borrowing or Floating Base Borrowing or (ii) a conversion of a CD Borrowing to a
Eurodollars Borrowing or a Floating Base Borrowing on any day other than the
last day of the Interest Period for such Eurodollar Borrowing shall be deemed a
payment for purposes of this Section.
12.06. Capital Adequacy. If, after the date hereof, any Bank shall
----------------
determine that either (i) the adoption of any applicable law, rule, regulation
or guideline regarding capital adequacy and applicable to commercial banks or
financial institutions generally or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or (ii) compliance by such Bank (or any lending office of such Bank)
with any request or directive applicable to commercial banks or financial
institutions generally regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency has or
would have the effect of reducing the rate of return on such Bank's capital or
the capital of such Bank's holding company as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount reasonably deemed by such Bank to
be material, then from time to time, within fifteen (15) days
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after demand by such Bank (with a copy to Administrative Agent), Company shall
pay to such Bank such additional amount or amounts as will adequately compensate
such Bank for such reduction. Each Bank will promptly notify Company and
Administrative Agent of any event of which it has actual knowledge, occurring
after the date thereof, which will entitle such Bank to compensation pursuant to
this Section 12.06. A certificate of such Bank claiming compensation under this
Section 12.06 and setting forth the additional amount of amounts to be paid to
it hereunder shall be conclusive in the absence of manifest error.
ARTICLE 13
----------
MISCELLANEOUS
-------------
13.01. Modification. All modifications, consents, amendments or waivers of
------------
any provision of any Loan Paper, or consent to any departure by Company
therefrom, shall be effective only if the same shall be in writing and concurred
in by Majority Banks and then shall be effective only in the specific instance
and for the purpose for which given; provided, however, that no change in the
provisions of this Loan Agreement which has the effect of (i) increasing the
Borrowing Base then in effect or increasing the Commitment then in effect or any
Bank's Percentage of the Commitment then in effect, (ii) reducing or increasing
the amount of principal or interest or rate of interest otherwise due on any
Note or any fee payable by Company hereunder, (iii) postponing, extending,
forbearing, or waiving the date on which any payment of principal, interest or
fee is due hereunder or extending the Maturity Date, (iv) modifying the amount
of any Scheduled Installment that may become due hereunder, (v) modifying the
definition of "Majority Banks," or Section 13.01 hereof, (vi) modifying the
number or percentage of Banks required to effect any modification, consent,
amendment or waiver of any provision of any Loan Paper, (vii) releasing any
guarantor of the Loan or any portion thereof or (viii) releasing any security
interest in any material or significant collateral that may secure the Loan (in
the event Section 8.19 should become applicable) shall be effective absent the
concurrence of all Banks. Should any Bank withhold consent to any change in an
interest rate, increase in the amount of the Loan Commitment, extension of the
time for payment of any Note, or extension of the Maturity Date approved by
Majority Banks, the remaining consenting Banks shall have the option of
purchasing from the non-consenting Bank its Note, such purchase to be made
ratably by such remaining Banks in proportion to such Banks' respective
Percentages.
13.02. Accounting Terms and Reports. All accounting terms not specifically
----------------------------
defined in this Loan Agreement shall be construed in accordance with Generally
Accepted Accounting Principles consistently applied on the basis used by Company
in prior years. All financial reports furnished by Company to Banks pursuant to
this Loan Agreement shall be prepared in such form and such detail as shall be
satisfactory to Banks, shall be prepared on the same basis as those prepared by
Company in prior years and shall be the same financial reports as those
furnished to Company's officers and directors. All financial projections
furnished by Company to Banks pursuant to this Loan Agreement shall be prepared
in such form and such detail as shall be satisfactory to Banks and shall be
prepared on the same basis as the financial reports furnished by Company to
Banks.
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13.03. Waiver. No failure to exercise, and no delay in exercising, on the
------
part of any Bank, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other further exercise
thereof or the exercise of any other right. The rights of Banks hereunder and
under the Loan Papers shall be in addition to all other rights provided by law.
No modification or waiver of any provision of this Loan Agreement, the Notes or
any Loan papers, nor consent to departure therefrom, shall be effective unless
in writing and no such consent or waiver shall extend beyond the particular case
and purpose involved. No notice or demand given in any case shall constitute a
waiver of the right to take other action in the same, similar or other instances
without such notice or demand.
13.04. Payment of Expenses; Documentary Taxes; Indemnification.
-------------------------------------------------------
(a) Company agrees to pay (i) all out-of-pocket costs and expenses
of Administrative Agent, either Agent and each Bank (including without
limitation the reasonable fees, expenses and disbursements of legal counsel
retained by Agents as legal counsel for Banks, but no other legal counsel for
any Bank retained separately by such Bank) in connection with the negotiation,
preparation, execution and delivery of this Loan Agreement and the other Loan
Papers, (ii) all out-of-pocket costs and expenses incurred by Administrative
Agent, either Agent and each Bank (including without limitation the reasonable
fees, expenses and disbursements of legal counsel retained by Agents as legal
counsel for Banks, but no other legal counsel for any Bank retained separately
by such Bank), in connection with the administration of this Loan Agreement, the
Notes, the other Loan Papers and any and all amendments, modifications and
supplements thereof or thereto and the preservation and enforcement of Banks'
rights under this Loan Agreement, the Notes and/or the other Loan Papers and
(iii) if an Event of Default occurs, all out-of-pocket costs and expenses
incurred by Administrative Agent, either Agent and each Bank (including without
limitation the reasonable fees, expenses and disbursements of legal counsel for
Administrative Agent, each Agent and each Bank) in connection with such Event of
Default and any collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom. Company shall indemnify each Bank against any
transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this Loan
Agreement or the Notes.
(b) COMPANY AGREES TO INDEMNIFY EACH BANK AND HOLD EACH BANK
HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, COSTS AND
EXPENSES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL, WHICH MAY BE INCURRED BY ANY BANK (OR BY
ADMINISTRATIVE AGENT OR EITHER AGENT IN CONNECTION WITH THEIR ACTIONS AS
ADMINISTRATIVE AGENT OR EITHER AGENT HEREUNDER) IN CONNECTION WITH ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING (WHETHER OR NOT SUCH BANK
SHALL BE DESIGNATED A PARTY THERETO) RELATING TO OR ARISING OUT OF THIS LOAN
AGREEMENT OR ANY ACTUAL OR PROPOSED USE OF PROCEEDS OF LOANS HEREUNDER; PROVIDED
--------
THAT NO BANK SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS OWN GROSS
NEGLIGENCE OR WILLFUL
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MISCONDUCT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION; PROVIDED,
--------
FURTHER, THAT COMPANY'S INDEMNIFICATION OF ADMINISTRATIVE AGENT, EACH AGENT AND
- - -------
EACH BANK SHALL INCLUDE ANY AND ALL LIABILITIES, LOSSES, DAMAGES, COSTS AND
EXPENSES ARISING OUT OF OR CONNECTED WITH ANY CLAIM ASSERTED BY OR CAUSE OF
ACTION BROUGHT BY ANY SHAREHOLDER OF COMPANY OR ANY OTHER PERSON WHICH ALLEGES
OR ASSERTS THAT THE TRANSACTIONS CONTEMPLATED BY OR CONSUMMATED UNDER OR
PURSUANT TO THE INDENTURE OR REGISTRATION STATEMENT OR THE ISSUANCE OF THE
SUBORDINATED INDEBTEDNESS VIOLATE OR CONTRAVENE ANY STATE OR FEDERAL SECURITIES
LAW, RULE OR REGULATION.
13.05. Notices. Except for telephonic notices permitted herein, any notices
-------
or other communications required or permitted to be given by this Loan Agreement
or any other documents and instruments referred to herein must be (i) given in
writing and personally delivered or mailed by prepaid certified or registered
mail, or (ii) made by telecopy or facsimile delivered or transmitted, to the
party to whom such notice or communication is directed and if between any Bank
or Administrative Agent or any Agent and Company, confirmed by a hard copy sent
by overnight delivery service for delivery the following day, to the address of
such party as follows:
(a) Company: (b) Any Agent or any Bank:
Cross Timbers Oil Company At its address shown below its name
810 Houston Street, Suite 2000 on the signature pages hereof.
Fort Worth, Texas 76102
(Attention: John O'Rear)
Telecopy No. (817) 870-1671
Any notice to be personally delivered may be delivered to the principal offices
(determined as of the date of such delivery) of the party to whom such notice is
directed. Any such notice or other communication shall be deemed to have been
given (whether actually received or not) on the day it is personally delivered
as aforesaid or, if mailed, on the third day after it is mailed as aforesaid;
or, if transmitted by telecopy, on the day that such notice is transmitted as
aforesaid; provided, however, that any telephonic or other notice received by
Administrative Agent or any Agent or any Bank after 12:00 noon New York time on
any day from Company pursuant to Section 2.02 (with respect to a Request for
Borrowing) shall be deemed for the purposes of such Section to have been given
by Company on the next succeeding Business Day. Any party may change its address
for purposes of this Loan Agreement by giving notice of such change to the other
parties pursuant to this Section 13.05.
13.06. GOVERNING LAW. THIS LOAN AGREEMENT HAS BEEN PREPARED, IS BEING
-------------
EXECUTED AND DELIVERED, AND IS INTENDED TO BE PERFORMED IN THE STATE OF TEXAS,
AND THE SUBSTANTIVE LAWS OF
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SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS LOAN
AGREEMENT AND ALL OF THE OTHER LOAN PAPERS, UNLESS OTHERWISE SPECIFIED THEREIN
OR UNLESS THE LAWS GOVERNING NATIONAL BANKS SHALL HAVE APPLICATION. NOTHING IN
THIS SECTION 13.06 OR ANY OTHER PROVISION OF THIS LOAN AGREEMENT OR ANY NOTE IS
INTENDED TO SUBJECT TO A LIMITATION IMPOSED BY TEXAS LAW THE MAXIMUM NON-
USURIOUS RATE OF INTEREST OTHERWISE PERMITTED TO BE CHARGED BY ANY BANK UNDER
THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA AND THE LAWS OF THE STATE IN
WHICH SUCH BANK IS LOCATED.
13.07. Choice of Forum; Consent to Service of Process and Jurisdiction;
----------------------------------------------------------------
Waiver of Rights to Jury Trial. Any suit, action or proceeding against Company
- - ------------------------------
with respect to this Loan Agreement, the Notes or any judgment entered by any
court in respect thereof, may be brought in the courts of the State of Texas,
County of Tarrant, or in the United States courts located in the State of Texas
as Majority Banks in their sole discretion may elect and Company hereby submits
to the non-exclusive jurisdiction of such courts for the purpose of any such
suit, action or proceeding. Company hereby agrees that service of all writs,
process and summonses in any such suit, action or proceeding brought in the
State of Texas may be brought upon any president, vice president or chief
financial officer of Company as Process Agent, and Company hereby irrevocably
appoints the Process Agent, as its true and lawful attorney-in-fact in the name,
place and stead of Company to accept such service of any and all such writs,
process and summonses, and agrees that the failure of Process Agent to give any
notice of such service of process to it shall not impair or affect the validity
of such service or of any judgment based thereon. Company hereby further
irrevocably consents to the service of process in any suit, action or proceeding
in said court by the mailing thereof by Administrative Agent by registered or
certified mail, postage prepaid, to its address set forth in Section 13.05
hereof. Company hereby irrevocably waives any objections which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Loan Agreement or any Note brought in the courts
located in the State of Texas, County of Tarrant, and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in any inconvenient forum. COMPANY AND EACH BANK HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, COUNTERCLAIM OR OTHER
LITIGATION THAT RELATES TO OR ARISES OUT OF ANY OF THIS LOAN AGREEMENT OR ANY
OTHER LOAN PAPERS OR THE ACTS OR OMISSIONS OF THE BANKS IN THE ENFORCEMENT OF
ANY OF THE TERMS OR PROVISIONS OF THIS LOAN AGREEMENT OR ANY OTHER LOAN PAPERS
OR OTHERWISE WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION ARE A
MATERIAL INDUCEMENT FOR BANKS ENTERING INTO THIS AGREEMENT.
13.08. Invalid Provisions. If any provision of any Loan Paper is held
------------------
to be illegal, invalid or unenforceable under present or future laws during the
term of this Loan Agreement,
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such provision shall be fully severable; such Loan Paper shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of such Loan Paper; and the remaining provisions of such Loan
Paper shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from such Loan
Paper. Furthermore, in lieu of each such illegal, invalid or unenforceable
provision shall be added as part of such Loan Paper a provision mutually
agreeable to Company, Administrative Agent and Majority Banks as similar in
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable. In the event Company, Administrative Agent, and
Majority Banks are unable to agree upon a provision to be added to the Loan
Paper within a period of ten (10) Business Days after a provision of the Loan
Paper is held to be illegal, invalid or unenforceable, then a provision
acceptable to Administrative Agent and Majority Banks as similar in terms to the
illegal, invalid or unenforceable provision as is possible and be legal, valid
and enforceable shall be added automatically to such Loan Paper. In either case,
the effective date of the added provision shall be the date upon which the prior
provision was held to be illegal, invalid or unenforceable.
13.09. Maximum Interest Rate. Regardless of any provision contained in
---------------------
any of the Loan Papers, Banks shall never be entitled to receive, collect or
apply as interest on the Notes any amount in excess of the Maximum Rate, and, in
the event that any Bank ever receives, collects or applies as interest any such
excess, the amount which would be excessive interest shall be deemed to be a
partial prepayment of principal and treated hereunder as such; and, if the
principal amount of the Obligations is paid in full, any remaining excess shall
forthwith be paid to Company. In determining whether or not the interest paid
or payable under any specific contingency exceeds the Maximum Rate, Company and
Banks shall, to the maximum extent permitted under applicable law, (i)
characterize any nonprincipal payment as an expense, fee or premium rather than
as interest; (ii) exclude voluntary prepayments and the effects thereof; and
(iii) amortize, prorate, allocate and spread, in equal parts, the total amount
of interest throughout the entire contemplated term of the Notes so that the
interest rate is uniform throughout the entire term; provided that, if the Notes
are paid and performed in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of existence thereof
exceeds the Maximum Rate, Banks shall refund to Company the amount of such
excess or credit the amount of such excess against the principal amount of the
Notes and, in such event, Banks shall not be subject to any penalties provided
by any laws for contracting for, charging, taking, reserving or receiving
interest in excess of the Maximum Rate.
13.10. Offset. Company hereby grants to Administrative Agent and each
------
Bank the right of offset, to secure repayment of the Notes, upon any and all
moneys, securities or other property of Company and the proceeds therefrom, now
or hereafter held or received by or in transit to Administrative Agent or Banks,
or any of them, or any of their agents, from or for the account of Company,
whether for safe keeping, custody, pledge, transmission, collection or
otherwise, and also upon any and all deposits (general or special) and credits
of Company, and any and all claims of Company against Administrative Agent or
Banks (or any of them) at any time existing.
-78-
<PAGE>
13.11. Chapter 346. Company, Administrative Agent and Banks hereby agree
-----------
that the provisions of Chapter 346 of the Texas Finance Code (regulating certain
revolving credit loans and revolving tri-party accounts) shall not apply to the
Loan Papers.
13.12. Entirety. The Loan Papers embody the entire agreement between the
--------
parties and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof and thereof.
13.13. Headings. Section headings are for convenience of reference only
--------
and shall in no way affect the interpretation of this Loan Agreement.
13.14. Survival. All representations and warranties made by Company herein
--------
shall survive delivery of the Notes and the making of the Loans.
13.15. Successors and Assigns.
----------------------
(a) The provisions of this Loan Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that Company may not assign or otherwise transfer any of its
rights under this Loan Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to Company,
Administrative Agent and Agents, such Bank shall remain responsible for the
performance of its obligations hereunder, and Company, Administrative Agent and
Agents shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement. The rights and
entitlements of any Bank under Article 12 shall be determined for purposes of
this Loan Agreement on the basis of what such Bank would be entitled to receive
under this Loan Agreement had it not granted any participating interest to any
Participant, whether or not such Bank has in fact done so, and any election,
determination or approval to be made by Majority Banks pursuant to Section 12.06
shall be made solely and exclusively by Banks who are signatories hereto which
constitute Majority Banks, with no recognition being given to any Participant of
any such Bank. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of Company hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Loan Agreement; provided that such participation
--------
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of any provision of this Loan Agreement which has the effect
of (i) adjusting the Participant's or any Bank's Commitment, (ii) reducing or
increasing the amount of principal or accrued interest otherwise due on any Note
or any fee payable by Company hereunder, (iii) postponing, extending, forbearing
or waiving the date on which any payment of principal, interest or fee is due
hereunder or extending the Maturity Date, (iv) modifying the amount of any
Scheduled Installment that may become due hereunder, or (v) modifying the
definition of Majority Banks hereof without the consent of the Participant and
-79-
<PAGE>
may contain any other provisions, or such participation may take place on such
other terms, as such Bank deems appropriate. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Loan Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all or a portion of its rights and obligations
under this Loan Agreement and the Loan Papers, and such Assignee shall assume
such rights and obligations, pursuant to an instrument executed by such Assignee
and such transferor Bank, with (and subject to) notice to, and the consent of,
Company (which consent shall not be unreasonably withheld), Administrative Agent
and Agents; provided that if an Assignee is an affiliate of such transferor
--------
Bank, such notice shall be given but no such consent shall be required; and
provided, further, that no assignment representing less than $5,000,000 in
- - -------- -------
Commitments shall be permitted. Upon execution and delivery of such an
instrument any payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Loan Agreement and shall
have all the rights and obligations of a Bank with Commitment(s) as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, Administrative Agent and
Company shall make appropriate arrangements so that, if required, new Notes are
issued to the Assignee. In connection with any such assignment, the transferor
Bank shall pay to Administrative Agent an administrative fee for processing such
assignment in the amount of $2,500. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall, prior to
the first date on which interest or fees are payable hereunder for its account,
deliver to Company and Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes on such form
of certificate which is satisfactory to Administrative Agent.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee or other transferee of any Bank's rights shall be
entitled to receive any greater payment under Article 12 than such Bank would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with Company's prior written consent or by reason of the
provisions of Article 12 requiring such Bank to designate a different lending
office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
13.16 Foreign Banks, Participants, and Assignees. Each Bank, Participant
------------------------------------------
(by accepting a participation interest under this Loan Agreement), and Assignee
(by executing an assignment and assumption agreement in a form acceptable to
Agents) that is not organized under the laws of the United States of America or
one of its states (a) represents to Administrative Agent and Company that (i) no
Taxes assessed by any Governmental Authority in the United States are
-80-
<PAGE>
required to be withheld by Administrative Agent or Company with respect to any
payments to be made to it in respect of the Obligations and (ii) it has
furnished to Administrative Agent and Company two duly completed copies of
either U.S. Internal Revenue Service Form 4224, Form 1006, Form W-8, or other
form acceptable to Administrative Agent that entitles it to exemption from U.S.
federal withholding Tax on all interest payments under the Loan Papers, and (b)
covenants to (i) provide Administrative Agent and Company a new Form 4224, Form
1001, Form W-8, or other form acceptable to Administrative Agent upon the
expiration or obsolescence of any previously delivered form according to
applicable laws and regulations, duly executed and completed by it, and (ii)
comply from time to time with all applicable laws and regulations with regard to
the withholding tax exemption. If any of the foregoing is not true or the
applicable forms are not provided, then Company and Administrative Agent
(without duplication) may deduct and withhold from interest payments under the
Loan Papers any United States federal income tax at the minimum rate under the
Internal Revenue Code of 1986, as amended, without reimbursement pursuant to
Section 4.08.
13.17. No Third Party Beneficiary. The parties do not intend the
--------------------------
benefits of this Loan Agreement to inure to any third party, nor shall this Loan
Agreement be construed to make or render Administrative Agent, either Agent or
Banks liable to any materialmen, supplier, contractor, subcontractor, purchaser
or lessee of any property owned by Company, or for debts or claims accruing to
any such persons against Company. Notwithstanding anything contained herein or
in the Notes, or in any other Loan Paper, or any conduct or course of conduct by
any or all of the parties hereto, before or after signing this Loan Agreement or
any of the other Loan Papers, neither this Loan Agreement nor any other Loan
Paper shall be construed as creating any right, claim or cause of action against
Administrative Agent, either Agent or Banks, or any of their officers,
directors, agents or employees, in favor of any materialmen, supplier,
contractor, subcontractor, purchaser or lessee of any property owned by Company,
nor to any other person or entity other than Company.
13.18 Acknowledgements. Company hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Loan Agreement and the other Loan Papers;
(b) neither the Administrative Agent, either Agent nor any Bank has
any fiduciary relationship with or duty to Company arising out of or in
connection with this Loan Agreement or any of the other Loan Papers, and the
relationship between Administrative Agent, either Agent and Banks, on one hand,
and Company, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Papers
or otherwise exists by virtue of the transactions contemplated hereby among
Banks or among Company and Banks.
-81-
<PAGE>
13.19. Multiple Counterparts. This Loan Agreement may be executed in any
---------------------
number of counterparts, all of which taken together shall constitute one and the
same agreement, and any of the parties hereto may execute this Loan Agreement by
signing any such counterpart.
13.20. Notice and Acknowledgment of No Oral Agreements. In consideration of
-----------------------------------------------
the making of the Loan, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by Company and Banks, Company
and Banks (i) agree that Company and Banks' execution of this Loan Agreement
constitutes acknowledgment that each Bank and Company have read and understand
this Loan Agreement; and (ii) acknowledge receipt of the following Notice:
NOTICE: THIS LOAN AGREEMENT AND ALL OTHER LOAN PAPERS RELATING TO THIS
------
LOAN CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENT THE FINAL AGREEMENT
BETWEEN COMPANY AND BANKS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF COMPANY AND BANKS.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN COMPANY AND BANKS RELATING
TO THIS LOAN.
IN WITNESS WHEREOF, the undersigned have executed this Loan Agreement as of
the day and year first above written.
[SIGNATURE PAGES TO FOLLOW]
-82-
<PAGE>
COMPANY:
-------
CROSS TIMBERS OIL COMPANY,
a Delaware corporation
By:/s/ John O'Rear
-----------------------------------------
John O'Rear, Vice President and Treasurer
-83-
<PAGE>
ADMINISTRATIVE AGENT
--------------------
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ John Kowalczuk
---------------------------------
John G. Kowalczuk, Vice President
Address for Notice:
------------------
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260
Telecopy No. (212) 648-5023
-84-
<PAGE>
SYNDICATION AGENT:
-----------------
NATIONSBANK OF TEXAS, N.A.
By: /s/ J. Scott Fowler
--------------------------------
J. Scott Fowler, Vice President
Address for Notice:
------------------
NationsBank of Texas, N.A.
901 Main Street, The Plaza, 64th Floor
P. O. Box 830104
Dallas, Texas 75283-0104
Attention: Energy Finance Division
Telecopy No: (214) 508-1285
-85-
<PAGE>
BANKS:
-----
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ John Kowalczuk
----------------------------------
John G. Kowalczuk, Vice President
Address for Notice:
------------------
Domestic Lending Office
-----------------------
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260
Telex number: 420230
Telecopy Number: (212) 648-5023
Eurodollar Lending Office
-------------------------
Morgan Guaranty Trust Company of New York,
Nassau Bahamas Office
c/o J.P. Morgan Services, Inc.
500 Stanton Christiana Road
Newark, Delaware 19713
Loan Operations, 3rd Floor
-86-
<PAGE>
NATIONSBANK OF TEXAS, N.A.
By: /s/ J. Scott Fowler
--------------------------------
J. Scott Fowler, Vice President
Address for Notice:
------------------
NationsBank of Texas, N.A.
901 Main Street, The Plaza, 64th Floor
P. O. Box 830104
Dallas, Texas 75283-0104
Attention: Energy Finance Division
Telecopy Number: (214) 508-1285
-87-
<PAGE>
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Dale Hurd
-----------------------------------
Dale S. Hurd, Senior Vice President
Address for Notice:
------------------
Texas Commerce Bank National Association
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Telecopy Number: (214) 965-2389
-88-
<PAGE>
BANKBOSTON, N.A.
By: /s/ George Passola
----------------------------
Name: George W Passola
----------------------------
Title: Managing Director
----------------------------
Address for Notice:
------------------
BankBoston, N.A.
100 Federal Street, M/S 01-08-04
Boston, Massachusetts 02110
Telecopy Number: (617) 434-3652
-89-
<PAGE>
WELLS FARGO BANK (TEXAS), N.A.
By: /s/ Charles Kirkham
----------------------------------
Charles D. Kirkham, Vice President
Address for Notice:
------------------
Wells Fargo Bank (Texas), N.A.
1445 Ross Avenue, Suite 400
Dallas, Texas 75202-2812
Telecopy Number: (214) 777-4044
-90-
<PAGE>
CIBC INC.
By: /s/ Alexsandra Dynorus
------------------------------
Name: Alexsandra K. Dynorus
------------------------------
Title: AUTHORIZED SIGNATORY
------------------------------
Address for Notice:
------------------
CIBC Inc.
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, eorgia 30339
Telecopy Number: (404) 319-4950
-91-
<PAGE>
OVERTON BANK AND TRUST, N.A.
By: /s/ W.H. Adams
-------------------------------
W.H. (Bill) Adams, III, Senior Vice
President
Address for Notice:
------------------
Overton Bank and Trust, N.A.
Continental Plaza, Suite 100
777 Main Street
Fort Worth, Texas 76102-5304
Telecopy Number: (817) 336-5615
-92-
<PAGE>
ABN-AMRO BANK N.V., HOUSTON AGENCY
By: ABN-AMRO NORTH AMERICA, INC.
By: /s/ H. Gene Shiels
-----------------------------
Name: H. Gene Shiels
-----------------------------
Title: Vice President
-----------------------------
By: /s/ C W Randall
-----------------------------
Name: C W Randall
-----------------------------
Title: S W
-----------------------------
Address for Notice:
------------------
ABN-AMRO Bank N.V., Houston Agency
Three Riverway, Suite 1700
Houston, Texas 77056
Telecopy Number: (713) 629-7533
-93-
<PAGE>
BANK OF MONTREAL
By: /s/ Robert Roberts
-----------------------------
Bobby Roberts, Director
Address for Notice:
------------------
Bank of Montreal
700 Louisiana, Suite 4400
Houston, Texas 77002
Telecopy Number: (713) 223-4007
-94-
<PAGE>
THE BANK OF NEW YORK
By: /s/ Raymond Palmer
----------------------------
Name: Raymond J.Palmer
----------------------------
Title: Vice President
----------------------------
Address for Notice:
------------------
Bank of New York
One Wall Street, 19th Floor
New York, NY 10286
Telecopy Number: (212) 635-7923
-95-
<PAGE>
BANQUE PARIBAS
By: /s/ Mike Fiuzat
------------------------------
Mike Fiuzat, Vice President
By: /s/ Marian Livingston
-------------------------------
Name: Marian Livingston
-------------------------------
Title: Vice President
-------------------------------
Address for Notice:
------------------
Banque Paribas
1200 Smith, Suite 3100
Houston, Texas 77002
Attention: Mike Fiuzat
Telecopy Number: (713) 659-6915
-96-
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------
Pascal Poupelle
Executive Vice President
Address for Notice:
------------------
Credit Lyonnais Houston Representative Office
1000 Louisiana, Suite 5360
Houston, Texas 77002
Attention: John M. Falbo,
Vice President and Group Head
Telecopy Number: (713) 751-0307
-97-
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Ronald McKay
------------------------------
Name: /s/ Ronald G McKay
------------------------------
Title: Vice President
------------------------------
Address for Notice:
------------------
3 Allen Center
333 Clay Street, Suite 4550
Houston, Texas 77002-4103
Attention: Ron McKaig
Telecopy Number: (713) 651-4888
Addresses for Borrowing Notices:
-------------------------------
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Debbie Aguilar
Telecopy Number: (312) 974-9626
-98-
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ Michael Kolosowsky
----------------------------------
Michael J. Kolosowsky, Vice President
Address for Notice:
------------------
1001 Fannin Street
Suite 2255
Houston, Texas 77002-6709
Attention: Paul Riddle
Telecopy Number: (713) 650-6354
-99-
<PAGE>
EXHIBITS
TO
REVOLVING CREDIT LOAN AGREEMENT
"A" - Form of Revolving Promissory Note
"B" - Request for Floating Base Borrowing
"C" - Request For CD Borrowing
"D" - Request for Eurodollar Borrowing
"E" - Scheduled Installment Certificate
"F" - List of Subsidiaries
"G" - Opinion of Counsel for Company (Kelly, Hart & Hallman, P.C.)
"H" - Form of Corporate General Certificate
SCHEDULES
TO
REVOLVING CREDIT LOAN AGREEMENT
"I" - List of Banks and each Bank's Percentage and share of the initial
Commitment
-100-
<PAGE>
EXHIBIT "A"
REVOLVING PROMISSORY NOTE
$__________________ New York, New York November 21, 1997
1. FOR VALUE RECEIVED, CROSS TIMBERS OIL COMPANY, a Delaware corporation
("Maker"), hereby unconditionally promise to pay to the order of
______________________________ ("Payee") at the principal office of Morgan
Guaranty Trust Company of New York, the sum of
______________________________________ AND NO/100 DOLLARS ($_____________) (or,
if less, so much thereof as may be advanced by Payee to Maker pursuant to
Section 2.01 of the Loan Agreement), in lawful money of the United States of
America. Capitalized terms not defined herein shall have the meaning assigned
to such terms in the Loan Agreement referred to below.
2. The unpaid principal amount of, and accrued unpaid interest on, this
Note shall be payable in accordance with the Loan Agreement, but not later than
December 31, 2002.
3. The unpaid principal amount of all Advances hereunder shall bear
interest from the date of advance until maturity at a rate per annum which is
provided in the Loan Agreement and which is selected by Maker pursuant to the
Loan Agreement. The interest rate specified in this section shall be subject to
adjustment under the circumstances described in the Loan Agreement. Interest
shall be computed in the manner provided in the Loan Agreement.
4. Regardless of any provision contained in this Note, the Loan Agreement
or any other document executed or delivered in connection therewith, Payee shall
never be deemed to have contracted for or be entitled to receive, collect or
apply as interest on this Note, any amount in excess of the Maximum Rate, and,
in the event that Payee ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of this Note, and, if the principal
balance of this Note is paid in full, any remaining excess shall forthwith be
paid to Maker. In determining whether or not the interest paid or payable under
any specific contingency exceeds the highest Maximum Rate, Maker and Payee
shall, to the maximum extent permitted under applicable law, (i) characterize
any non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense or fee rather than as interest, (ii)
exclude voluntary prepayments and the effect thereof, and (iii) spread the total
amount of interest throughout the entire contemplated term of this Note so that
the interest rate is uniform throughout such term.
5. This Note has been executed and delivered pursuant to, and is subject
to, that certain Revolving Credit Agreement dated November 21, 1997, among
Maker, Banks (as defined therein), Morgan Guaranty Trust Company of New York, as
Administrative Agent, and NationsBank of Texas, N.A, as Syndication Agent (the
"Loan Agreement"), and this Note is one of the "Notes" referred to in the Loan
Agreement, and the holder of this Note shall be entitled to
<PAGE>
the benefits provided in the Loan Agreement. Reference is hereby made to the
Loan Agreement for a statement of (i) the prepayment rights and obligations of
Maker and (ii) the events upon which the maturity of this Note may be
accelerated.
6. Should the principal of, or any installment of interest on, this Note
become due and payable on a day other than a Business Day, then the maturity
thereof shall be extended to the next succeeding Business Day. If this Note, or
any installment or payment due hereunder is not paid when due, whether at
maturity or by acceleration, or if it is collected through any legal proceeding
at law or in equity, or in bankruptcy, receivership, probate or other court
proceedings, Maker agrees to pay all costs of collection, including, but not
limited to, attorneys' fees and court costs incurred by the holder hereof. All
past-due principal of, and, to the extent permitted by applicable law, interest
on, this Note shall bear interest until paid at the lesser of (a) the Floating
Base Rate from time to time in effect, plus three percent (3%), or (b) the
Maximum Rate.
7. Maker and all sureties, endorsers, guarantors and other parties ever
liable for payment of any sums payable pursuant to the terms of this Note,
jointly and severally waive demand, presentment for payment, protest, notice of
protest, notice of acceleration, notice of intent to accelerate, diligence in
collection, the bringing of any suit against any party and any notice of or
defense on account of any extensions, renewals, partial payment or changes in
any manner of or in this Note or in any of its terms, provisions and covenants,
or any releases or substitutions of any security, or any delay, indulgence or
other act of any trustee or any holder hereof, whether before or after maturity.
8. All Advances made by Payee or Administrative Agent on behalf of Payee,
the respective Interest Periods thereof, and all repayments of the principal
thereof shall be recorded by Payee or Administrative Agent on behalf of Payee
and, prior to any transfer hereof, endorsed by Payee or Administrative Agent on
behalf of Payee on the schedule attached hereto, or on a continuation of such
schedule attached to and a part hereof, provided that the failure of Payee to
--------
make any such recordation of endorsement shall not affect the Obligations of
Maker hereunder or under the Loan Agreement.
MAKER:
-----
CROSS TIMBERS OIL COMPANY, a Delaware
corporation
By: _________________________________________
John O'Rear, Vice President and Treasurer
-2-
<PAGE>
SCHEDULE OF ADVANCES AND PAYMENTS OF PRINCIPAL
----------------------------------------------
<TABLE>
<CAPTION>
Unpaid Unpaid
Amount of Principal Principal
Amount Type Principal Balance Balance of
of of Interest Paid or of Promissory Notation
Date Advance Advance Period Prepaid Advance Note Made By
- - -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
</TABLE>
-3-
<PAGE>
EXHIBIT "B"
REQUEST FOR FLOATING BASE BORROWING
-----------------------------------
1. This Request for Floating Base Borrowing is executed and delivered by
Cross Timbers Oil Company, a Delaware corporation ("Borrower"), to Morgan
Guaranty Trust Company of New York, as "Administrative Agent", pursuant to
Section 2.02 of that certain Revolving Credit Agreement dated as of November 21,
1997, among Borrower, Banks, Agents therein named and the Administrative Agent
(the "Agreement"). Any terms used herein and not defined herein shall have the
meaning assigned to them in the Agreement.
2. Borrower hereby requests that Banks make a Floating Base Borrowing to
Borrower pursuant to the Agreement as follows:
(a) Amount of Floating Base Borrowing: $ _______________.
(b) Date of Floating Base Borrowing: _________________, 199__.
(c) Nature of Floating Base Borrowing (check one box only):
[_] Advance (new money).
[_] Rollover of prior Floating Base Borrowing.
[_] Conversion from prior Borrowing.
(d) Borrowing Base Percentage after giving effect
to the requested Borrowing hereunder: _______%.
3. Borrower hereby represents, warrants, and certifies to Banks that as
of the date of the Floating Base Borrowing requested herein:
(a) There exists no Event of Default or event which with notice or lapse
of time or both could constitute an Event of Default.
(b) Borrower has performed and complied with all agreement and conditions
contained in the Agreement which are required to be performed or complied with
by Borrower.
(c) The representations and warranties contained in the Section 6 of the
Agreement are true in all respects, with the same force and effect as though
made on and as of the date of this Floating Base Borrowing, except that, if this
Borrowing is a rollover or conversion of a prior Borrowing but does not
constitute an Advance for new money, Borrower does not warrant or represent that
no Material Adverse Effect has occurred in the financial condition or business
of Borrower or a Subsidiary, as provided in Section 6.06 of the Agreement.
<PAGE>
4. This Request for Floating Base Borrowing is executed on _____________,
19__, by an authorized officer of Cross Timbers Oil Company. The undersigned, in
such capacity, hereby certifies each and every matter contained herein to be
true and correct.
CROSS TIMBERS OIL COMPANY,
a Delaware corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
-2-
<PAGE>
EXHIBIT "C"
REQUEST FOR CD BORROWING
------------------------
1. This Request for CD Borrowing is executed and delivered by Cross
Timbers Oil Company, a Delaware corporation ("Borrower"), to Morgan Guaranty
Trust Company of New York, as "Administrative Agent", pursuant to Section 2.02
of that certain Revolving Credit Agreement dated as of November 21, 1997, among
Borrower, the Banks and Agents therein named and the Administrative Agent (the
"Agreement"). Any terms used herein and not defined herein shall have the
meaning assigned to them in the Agreement.
2. Borrower hereby requests that Banks make a CD Borrowing to Borrower
pursuant to the Agreement as follows:
(a) Amount of CD Borrowing: $ _______________.
(b) Date of CD Borrowing: _________________, 199__.
(c) CD Interest Period: _________________ day.
(d) Nature of CD Borrowing (check one box only):
[_] Advance (new money).
[_] Rollover of prior CD Borrowing.
[_] Conversion from prior Borrowing.
(e) Borrowing Base Percentage after giving effect
to the requested Borrowing hereunder: _______%.
3. Borrower hereby represents, warrants, and certifies to Banks that as
of the date of the CD Borrowing requested herein:
(a) There exists no Event of Default or event which with notice or lapse
of time or both could constitute an Event of Default.
(b) Borrower has performed and complied with all agreement and conditions
contained in the Agreement which are required to be performed or complied with
by Borrower.
(c) The representations and warranties contained in the Section 6 of the
Agreement are true in all respects, with the same force and effect as though
made on and as of the date of this CD Borrowing, except that, if this Borrowing
is a rollover or conversion of a prior Borrowing but does not constitute an
Advance for new money, Borrower does not warrant or represent that no Material
Adverse Effect has occurred in the financial condition or business of Borrower
or a Subsidiary, as provided in Section 6.06 of the Agreement.
<PAGE>
4. This Request for CD Borrowing is executed on _______________, 19__, by
an authorized officer of Cross Timbers Oil Company. The undersigned, in such
capacity, hereby certifies each and every matter contained herein to be true and
correct.
CROSS TIMBERS OIL COMPANY,
a Delaware corporation
By: ____________________________________
Name: ____________________________________
Title:____________________________________
-2-
<PAGE>
EXHIBIT "D"
REQUEST FOR EURODOLLAR BORROWING
--------------------------------
1. This Request for Eurodollar Borrowing is executed and delivered by
Cross Timbers Oil Company, a Delaware corporation ("Borrower"), to Morgan
Guaranty Trust Company of New York, as "Administrative Agent", pursuant to
Section 2.02 of that certain Revolving Credit Agreement dated as of November 21,
1997, among Borrower, Banks and Agents therein named and the Administrative
Agent (the "Agreement"). Any terms used herein and not defined herein shall have
the meaning assigned to them in the Agreement.
2. Borrower hereby requests that Banks make a Eurodollar Borrowing to
Borrower pursuant to the Agreement as follows:
(a) Amount of Eurodollar Borrowing: $ _______________.
(b) Date of Eurodollar Borrowing: _________________, 199__.
(c) Eurodollar Interest Period: _______________ day.
(d) Nature of Eurodollar Borrowing (check one box only):
[_] Advance (new money).
[_] Rollover of prior Eurodollar Borrowing.
[_] Conversion from prior Borrowing.
(e) Borrowing Base Percentage after giving effect
to the requested Borrowing hereunder: _______%.
3. Borrower hereby represents, warrants, and certifies to Banks that as
of the date of the Eurodollar Borrowing requested herein:
(a) There exists no Event of Default or event which with notice or lapse
of time or both could constitute an Event of Default.
(b) Borrower has performed and complied with all agreement and conditions
contained in the Agreement which are required to be performed or complied with
by Borrower.
(c) The representations and warranties contained in the Section 6 of the
Agreement are true in all respects, with the same force and effect as though
made on and as of the date of this Eurodollar Borrowing, except that, if this
Borrowing is a rollover or conversion of a prior Borrowing but does not
constitute an Advance for new money, Borrower does not warrant or represent that
no Material Adverse Effect has occurred in the financial condition or business
of Borrower or a Subsidiary, as provided in Section 6.06 of the Agreement.
<PAGE>
4. This Request for Eurodollar Borrowing is executed on _______________,
19__, by an authorized officer of Cross Timbers Oil Company. The undersigned, in
such capacity, hereby certifies each and every matter contained herein to be
true and correct.
CROSS TIMBERS OIL COMPANY,
a Delaware corporation
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
-2-
