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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
==============
(Amendment No. 6)
Under the Securities Exchange Act of 1934*
MESA INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
590911 10 3
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(CUSIP Number)
Boone Pickens
2001 Ross Avenue, Suite 2600
Dallas, Texas 75201
(214) 969-2200
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
April 28, 1994
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box _____.
Check the following box if a fee is being paid with this statement _____. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such class.
See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page should be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Note: This statement also constitutes a filing of a Statement on Schedule
13D of Fayez S. Sarofim and John L. Cox.
<PAGE>
CUSIP No. 590911 10 3
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(1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
above Persons
BOONE PICKENS
###-##-####
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(2) Check the Appropriate Box if a Member of a Group
(a)................................................. -----
X
(b)................................................. -----
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(3) SEC Use Only
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(4) Source of Funds
PF, 00
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
X
-----
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(6) Citizenship or Place of Organization
United States Citizen
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Number of (7) Sole Voting Power 4,397,626 Shares
Shares Bene- --------------------------------------------------------------
ficially (8) Shared Voting Power -0-
Owned by --------------------------------------------------------------
Each Report- (9) Sole Dispositive Power 4,397,626 Shares
ing Person --------------------------------------------------------------
With (10) Shares Dispositive Power -0-
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,397,626 Shares
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
X
-----
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(13) Percent of Class Represented by Amount in Row (11)
6.9%
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(14) Type of Reporting Person (See Instructions) IN
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<PAGE>
CUSIP No. 590911 10 3
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(1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
above Persons
FAYEZ S. SAROFIM
###-##-####
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(2) Check the Appropriate Box if a Member of a Group
(a)................................................. -----
X
(b)................................................. -----
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(3) SEC Use Only
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(4) Source of Funds
PF
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
X
-----
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(6) Citizenship or Place of Organization
United States Citizen
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Number of (7) Sole Voting Power 1,400,000 Shares
Shares Bene- --------------------------------------------------------------
ficially (8) Shared Voting Power -0-
Owned by --------------------------------------------------------------
Each Report- (9) Sole Dispositive Power 1,400,000 Shares
ing Person --------------------------------------------------------------
With (10) Shares Dispositive Power -0-
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,400,000 Shares
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
-----
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(13) Percent of Class Represented by Amount in Row (11)
2.2%
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(14) Type of Reporting Person (See Instructions) PN
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<PAGE>
CUSIP No. 590911 10 3
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(1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
above Persons
JOHN L. COX
###-##-####
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(2) Check the Appropriate Box if a Member of a Group
(a)................................................. -----
X
(b)................................................. -----
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(3) SEC Use Only
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(4) Source of Funds
PF
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
X
-----
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(6) Citizenship or Place of Organization
United States Citizen
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Number of (7) Sole Voting Power 1,025,000 Shares
Shares Bene- --------------------------------------------------------------
ficially (8) Shared Voting Power -0-
Owned by --------------------------------------------------------------
Each Report- (9) Sole Dispositive Power 1,025,000 Shares
ing Person --------------------------------------------------------------
With (10) Shares Dispositive Power -0-
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,025,000 Shares
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
-----
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(13) Percent of Class Represented by Amount in Row (11)
1.6%
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(14) Type of Reporting Person (See Instructions) PN
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<PAGE>
Boone Pickens, an individual residing in Dallas County, Texas, hereby
amends and supplements his Statement on Schedule 13D as originally filed on
November 11, 1992 and as amended through Amendment No. 5 thereto filed April
6, 1994 (as amended, the "Original Statement"), with respect to the common
stock, par value $.01 per share (the "Common Stock"), of MESA Inc., a Texas
corporation ("Mesa"). This Statement also constitutes the initial filing of
a Statement on Schedule 13D by each of Fayez S. Sarofim and John L. Cox, whom
together with Mr. Pickens may be deemed to be members of a group for purposes
of filing this Statement. Unless otherwise indicated, each capitalized term
used but not defined herein shall have the meaning assigned to such term in the
Original Statement.
Item 2. Identity and Background.
- ---------------------------------
Item 2 of the Original Statement is hereby amended and supplemented as
follows:
In addition to Mr. Pickens (see the Original Statement), this statement
is being filed by (i) Mr. Sarofim, whose business address is Two Houston
Center, Suite 2907, Houston, Texas 77010, and (ii) Mr. Cox, whose business
address is 400 W. Wall, 4th Floor, Midland, Texas 79701. Messrs. Sarofim and
Cox are citizens of the United States of America. Mr. Sarofim is the chairman
of the board and president of Fayez Sarofim & Co., an investment advisor. Mr.
Cox is an independent oil operator. Mr. Sarofim is also a member of the Board
of Directors of Mesa.
During the last five years, neither Mr. Sarofim nor Mr. Cox has been
convicted in any criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
- -----------------------------------------------------------
Item 3 of the Original Statement is hereby amended and supplemented as
follows:
Prior to the purchase described in the next paragraph, Mr. Sarofim owned
400,000 shares of Common Stock, which he acquired with personal funds, and Mr.
Cox owned 25,000 shares of Common Stock, which he acquired with personal funds.
In connection with an underwritten public offering by Mesa of 15,000,000
shares of Common Stock (plus shares subject to an underwriters' over-allotment
option) pursuant to a Registration Statement on Form S-3 (Registration No. 033-
52625), the underwriters reserved to be offered to each of Messrs. Pickens,
Sarofim and Cox 1,000,000 of the shares offered (3,000,000 shares for such
persons in the aggregate). Each such person, severally, purchased 1,000,000
shares in the offering, which was consummated on April 28, 1994. To acquire
their shares, Messrs. Sarofim and Cox used personal funds. Pursuant to two
loan agreements entered into on April 19, 1994 (the "Loan Agreements"), each
of Mr. Sarofim and Mr. Cox loaned Mr. Pickens 50% (an aggregate of 100%) of
the amount of funds used by him to purchase the 1,000,000 shares of Common
Stock so purchased by him. Borrowings under the Loan Agreements will mature
two years after funding, bear interest (which is due at maturity) at the
prime rate and are unsecured.
In separate letter agreements (the "Lock-up Agreements"), each of Mr.
Pickens, Mr. Sarofim and Mr. Cox has, severally, agreed that he will not,
without the prior written consent of Merrill Lynch & Co. (the lead underwriter
for the offering), offer, sell or otherwise dispose of any shares of Common
Stock or securities convertible into, or exercisable for, Common Stock for a
period of 120 days after April 21, 1994, subject to certain exceptions.
The foregoing is a summary of the Loan Agreements and the Lock-up
Agreements, copies of the forms of which have been filed as Exhibits 5, 6 and
7 hereto and incorporated by reference herein; such summary is qualified by,
and subject to, the more complete information contained in such agreements.
Item 4. Purpose of Transaction.
- --------------------------------
Item 4 of the Original Statement is hereby amended and supplemented as
follows:
Each of Mr. Sarofim and Mr. Cox acquired the shares of Common Stock held
by him for investment. In addition, by virtue of the fact that Mr. Sarofim is
also a director of Mesa, Mr. Sarofim may be deemed to be an affiliate of Mesa
and may be able to exert influence or control over the management and policies
of Mesa.
Each of Mr. Sarofim and Mr. Cox reserves the right to acquire beneficial
ownership of additional shares of Common Stock from time to time in the future,
directly or indirectly, by open market purchase or otherwise, and to dispose
of all or a portion of his holdings of Common Stock.
Each of Mr. Sarofim and Mr. Cox intends to review on a regular basis his
investment in Common Stock, the securities markets and general economic and
industry conditions. Each of Mr. Sarofim and Mr. Cox reserves the right to act
in respect of his investment in Common Stock in accordance with his best
judgment in light of the circumstances existing at the time.
Item 5. Interest in Securities of the Issuer.
- ----------------------------------------------
Item 5 of the Original Statement is hereby amended and supplemented as
follows:
As of April 28, 1994, (i) Mr. Pickens beneficially owns 4,397,626 shares
of Common Stock (approximately 6.9% of the 63,484,609 shares of Common Stock
deemed to be outstanding, including the 722,500 shares Mr. Pickens has a right
to acquire within 60 days pursuant to employee stock options), (ii) Mr. Sarofim
beneficially owns 1,400,000 shares (approximately 2.2% of the outstanding
shares) and (iii) Mr. Cox beneficially owns 1,025,000 shares (approximately
1.6% of the outstanding shares). Each such person has sole voting power and
sole dispositive power with respect to the outstanding shares beneficially
owned by him.
By virtue of the arrangements described herein, Mr. Pickens, Mr. Sarofim
and Mr. Cox may be considered to be a "group" for purposes of filing this
Statement. Such persons, in the aggregate, beneficially own 6,822,626 shares
of Common Stock (approximately 10.7% of the 63,484,609 shares of Common Stock
deemed to be outstanding, including the 722,500 shares Mr. Pickens has a right
to acquire within 60 days pursuant to employee stock options).
Mr. Pickens, Mr. Sarofim and Mr. Cox each disclaim (i) the existence of
such a group and (ii) beneficial ownership of the shares owned by the other
such persons.
<PAGE>
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
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Item 6 of the Original Statement is hereby supplemented as follows:
The information set forth in Item 3 with respect to the Loan Agreements
and the Lock-up Agreements is incorporated herein by reference.
Mr. Pickens, Mr. Sarofim and Mr. Cox have entered into a Joint Filing
Agreement regarding the filing of this Statement and subsequent amendments.
A copy of such Joint Filing Agreement is attached hereto as Exhibit 8 and is
incorporated herein by reference in its entirety.
Item 7. Material to be filed as Exhibits.
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Item 7 of the Original Statement is hereby supplemented as follows:
Exhibit 5. Form of Loan Agreement between Mr. Sarofim and Mr.
Pickens
Exhibit 6. Form of Loan Agreement between Mr. Cox and Mr. Pickens
Exhibit 7. Form of Lock-Up Agreement
Exhibit 8. Joint Filing Agreement dated April 28, 1994 between Mr.
Pickens, Mr. Sarofim and Mr. Cox
<PAGE>
SIGNATURE
=========
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Date: April 28, 1994
--------------
/s/ Boone Pickens
----------------------------------
Boone Pickens
<PAGE>
SIGNATURE
=========
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Date: April 28, 1994
--------------
/s/ Fayez S. Sarofim
----------------------------------
Fayez S. Sarofim
<PAGE>
SIGNATURE
=========
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Date: April 28, 1994
--------------
/s/ John L. Cox
----------------------------------
John L. Cox
EXHIBIT 5
LOAN AGREEMENT
Dated as of April 13, 1994
Between
BOONE PICKENS
and
FAYEZ S. SAROFIM
<PAGE>
TABLE OF CONTENTS
-----------------
Section
- -------
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain Defined Terms
1.2 Computation of Time Periods
1.3 Accounting Terms
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCE
2.1 The Advance
2.2 Making the Advance
2.3 Repayment
2.4 Interest
2.5 Prepayments
2.6 Payments and Computations
ARTICLE III
CONDITIONS OF LENDING
3.1 Condition Precedent to the Advance
ARTICLE IV
EVENT OF DEFAULT
4.1 Events of Default
ARTICLE V
MISCELLANEOUS
5.1 Amendments, Etc.
5.2 Notices, Etc.
5.3 No Waiver; Remedies
5.4 Costs, Expenses and Taxes
5.5 Binding Effect
5.6 Limitation on Agreements
5.7 Severability
5.8 Final Agreement
5.9 Governing Law
5.10 Execution in Counterparts
EXHIBITS
Exhibit 2.2(d) - Form of Note
<PAGE>
LOAN AGREEMENT
Dated as of April 13, 1994
BOONE PICKENS (the "Borrower"), and FAYEZ S. SAROFIM (the "Lender") hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms.
-----------------------------------
As used in this Loan Agreement (the "Agreement"), the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Advance" means the advance by the Lender to the Borrower pursuant
to Article II.
"Business Day" means any day other than Saturday, Sunday and any
other day on which commercial banks are authorized by law to close in
the State of Texas.
"Commitment" has the meaning specified in Section 2.1.
"Default" means any event which, with the lapse of time or giving
of notice, or both, would constitute an Event of Default.
"Events of Default" has the meaning specified in Section 4.1.
"Highest Lawful Rate" means the maximum nonusurious interest rate,
if any, that at any time or from time to time may be contracted for,
taken, reserved, charged, or received with respect to any Note or on
other amounts, if any, due to the Lender pursuant to this Agreement or
any other Loan Document under laws applicable to the Lender which are
presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now
allow.
"Loan Documents" means this Agreement, the Note and any document
or instrument executed in connection with the foregoing.
"Note" has the meaning specified in Section 2.2(c).
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Prime Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum
shall at all times be equal to the rate of interest announced publicly
by Texas Commerce Bank National Association in Houston, Texas from time
to time, as its prime commercial lending rate.
<PAGE>
"Property" means any interest or right in any kind of property or
asset, whether real, personal, or mixed, owned or leased, tangible or
intangible, and whether now held or hereafter acquired.
"Public Offering" shall mean the public offering of Securities as
described in the Registration Statement.
"Registration Statement" means the Registration Statement on Form
S-3 filed by MESA, Inc. with the Securities and Exchange Commission on
March 11, 1994 as amended by Amendment No. 1 filed on March 22, 1994
and as may be amended by any subsequent amendments thereto.
"Securities" means the common stock, par value $.01 per share, of
MESA, Inc.
"Stated Maturity Date" means the date that is the second
anniversary of the date of this Agreement.
"Termination Date" means the earlier to occur of (a) the Stated
Maturity Date, or (b) any earlier maturity date resulting from
acceleration of the outstanding principal amount of the Advance
pursuant to Section 4.1 hereof.
SECTION 1.2 Computation of Time Periods.
-----------------------------------------
In this Agreement in the computation of periods of time from a specified
date to a later specified date, unless otherwise specified herein the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
SECTION 1.3 Accounting Terms.
------------------------------
All accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCE
SECTION 2.1 The Advance.
-------------------------
The Lender agrees, on the terms and conditions hereinafter set forth, to
make an Advance to the Borrower on any Business Day during the period from the
date hereof until May 30, 1994 in an aggregate amount not to exceed $4,000,000
(such amount being the Lender's "Commitment"). Within the limits of the
Lender's Commitment, the Borrower may borrow and prepay amounts as provided in
this Article II, however Borrower may make only one Advance hereunder and shall
not have the right to reborrow any amounts repaid hereunder.
SECTION 2.2 Making the Advance.
--------------------------------
(a) The Advance hereunder shall be made on the date of the initial
closing of the Public Offering. The Advance shall be made on the Borrower's
oral or written notice ("Notice of Borrowing") given by the Borrower to the
Lender; provided however, with respect to an oral Notice of Borrowing, the
Borrower shall deliver promptly to the Lender a written confirmation of the
notice. The Notice of Borrowing shall be given not later than 10:00 A.M.
(Dallas, Texas time) on the second Business Day prior to the date of the
Advance. The Notice of Borrowing shall specify therein the requested (i) date
of the Advance, and (ii) amount of the Advance. Upon fulfillment of the
applicable conditions set forth in Article III, the Lender will make such funds
available to the Borrower. The Notice of Borrowing shall be irrevocable and
binding on the Borrower.
(b) The Borrower shall be entitled to deliver the Notice of Borrowing to
the Lender only if the Registration Statement has been declared effective by
the Securities and Exchange Commission.
(c) The amount of the Advance shall be equal to the lesser of (i) the
Commitment and (ii) 50% of the aggregate price payable by the Borrower for the
purchase of Securities in the Public Offering as described in the Registration
Statement. The proceeds of the Advance shall be used by the Borrower
exclusively for the purpose of making such purchase.
(d) The Borrower shall execute and deliver to the Lender to evidence the
Advance made by the Lender pursuant to Section 2.2(a) hereof, a promissory note
(the "Note") in the amount of the Advance. The Note shall be substantially in
the form of Exhibit 2.2(d), and shall mature on the Termination Date.
SECTION 2.3 Repayment.
-----------------------
On the Termination Date the Borrower shall repay the unpaid principal
amount outstanding of each Advance made by the Lender.
SECTION 2.4 Interest.
----------------------
The Borrower shall pay interest on the unpaid principal amount of the
Advance made by the Lender from the date of the Advance until such principal
amount shall be paid in full, at the rate per annum equal at all times to the
lesser of (i) the Prime Rate in effect from time to time and (ii) the Highest
Lawful Rate. Such interest shall be payable on the Termination Date. Such
interest shall be added to the unpaid principal amount of the Advance on each
anniversary of the date of the Advance occurring prior to the Termination Date.
SECTION 2.5 Prepayments.
-------------------------
The Borrower may, upon at least three (3) Business Days' notice to the
Lender stating the proposed date (which shall be a Business Day) and aggregate
principal amount of a prepayment, prepay the outstanding principal amounts of
the Advance in whole or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid; provided however, that all
such prepayments shall be made together with accrued interest to the date of
such prepayment on the principal amount prepaid without premium or penalty
thereon. Such notice shall be irrevocable and the payment amount specified in
such notice shall be due and payable on the prepayment date described in such
notice, together with accrued and unpaid interest on the amount prepaid.
SECTION 2.6 Payments and Computations.
---------------------------------------
(a) The Borrower shall make each payment hereunder and under the Note not
later than 12:00 Noon (Dallas, Texas time) on the day when due in U.S. dollars
to a bank designated in advance in writing by Lender, for the account of the
Lender, in same day funds.
<PAGE>
(b) All computations of interest based on the Prime Rate shall be made
on the basis of the actual number of days (including the first day but
excluding the last day) elapsed computed as if each calendar year consisted of
360 days (unless such calculation would result in interest exceeding the
Highest Lawful Rate in which event such interest shall be calculated on the
basis of a year of 365 or 366 days, as the case may be). Each determination
by the Lender of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Note shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.1 Condition Precedent to the Advance.
------------------------------------------------
The obligation of the Lender to make the Advance is subject to the
condition precedent that the Lender shall have received on or before the day
of the Advance the following, each dated such day, in form and substance
satisfactory to the Lender:
(a) a Notice of Borrowing;
(b) this Agreement, duly executed by the Borrower; and
(c) the Note to the order of the Lender.
ARTICLE IV
EVENTS OF DEFAULT
SECTION 4.1 Events of Default.
-------------------------------
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of, or interest on, the
Note when the same becomes due and payable; or
(b) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for thirty (30)
days after notice of such event given by the Lender to the Borrower; or
(c) the Borrower shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy or insolvency or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its Property and,
in the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for,
it or for any substantial part of its Property) shall occur; or
(d) Any judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower and there shall be any period
of thirty (30) consecutive days during which such judgment is not satisfied
through insurance payments or otherwise or a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect;
then, and in any such event, the Lender may, by notice to the Borrower, (i)
declare the obligation to the Advance hereunder to be terminated, whereupon the
same shall forthwith terminate, and (ii) may, by notice to the Borrower,
declare the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Note, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the obligation of the
Lender to make the Advance shall automatically be terminated and (B) the Note,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, Etc.
-----------------------------
No amendment or waiver of any provision of this Agreement or the Note, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 5.2 Notices, Etc.
--------------------------
All notices and other communications provided in connection with this
Agreement to a party to this Agreement shall be in writing (including by
facsimile transmission) unless oral notice is otherwise expressly permitted
hereunder, and shall be given to the intended recipient at the address
specified below, or such address as may be provided by written notice in
accordance with this Section 5.2. All such notices and other communications
shall be effective (a) if delivered by facsimile transmission, when received
and telephonically confirmed, (b) if delivered, when delivered at the address
of the recipient specified below, (c) if given orally, at the time given,
provided that written confirmation of such notice shall have been received in
accordance with this Section 5.2 promptly thereafter, and in no event more than
twelve (12) hours after such oral notice has been received, and (d) if mailed,
on the third calendar day after being deposited in the U.S. mail, by certified
mail, postage prepaid, return receipt requested:
i) If to Borrower:
Boone Pickens
2600 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
<PAGE>
ii) If to Lender:
Fayez S. Sarofim
Two Houston Center
Suite 2907
Houston, Texas 77010
SECTION 5.3 No Waiver; Remedies.
---------------------------------
No failure on the part of the Lender to exercise, and no delay in
exercising, any right under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 5.4 Costs, Expenses and Taxes.
---------------------------------------
The Borrower agrees to pay promptly on demand all costs and expenses in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents and the other documents to be
delivered under the Loan Documents, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Lender with
respect thereto and with respect to advising the Lender as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay
promptly on demand all costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 5.4.
SECTION 5.5 Binding Effect.
----------------------------
This Agreement shall become effective when it shall have been executed by
the Borrower and the Lender and thereafter shall be binding upon and inure to
the benefit of the Borrower and the Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 5.6 Limitation on Agreements.
--------------------------------------
(a) All agreements between the Borrower or the Lender, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
demand being made in respect of an amount due under any Loan Document or
otherwise, shall the amount paid, or agreed to be paid, to the Lender for the
use, forbearance, or detention of the money to be loaned under this Agreement,
the Note or any other Loan Document or otherwise or for the payment or
performance of any covenant or obligation contained herein or in any other Loan
Document exceed the Highest Lawful Rate. If, as a result of any circumstances
whatsoever, fulfillment of any provision hereof or of any of such documents,
at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury law, then,
ipso facto, the obligation to be fulfilled shall be reduced to the limit of
such validity, and if, from any such circumstance, the Lender shall ever
receive interest or anything which might be deemed interest under applicable
law which would exceed the Highest Lawful Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal amount
owing on account of the Note or the amounts owing on other obligations of the
Borrower to the Lender under any Loan Document and not to the payment of
interest, or if such excessive interest exceeds the unpaid principal balance
of the Note and the amounts owing on other obligations of the Borrower to the
Lender under any Loan Document, as the case may be, such excess shall be
refunded to the Borrower. All sums paid or agreed to be paid to the Lender for
the use, forbearance, or detention of the indebtedness of the Borrower to the
Lender shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full term of such indebtedness
until payment in full of the principal (including the period of any renewal or
extension thereof) so that the interest on account of such indebtedness shall
not exceed the Highest Lawful Rate. Notwithstanding anything to the contrary
contained in any Loan Document, it is understood and agreed that if at any time
the rate of interest which accrues on the outstanding principal balance of the
Note shall exceed the Highest Lawful Rate, the rate of interest which accrues
on the outstanding principal balance of the Note shall be limited to the
Highest Lawful Rate, but any subsequent reductions in the rate of interest
which accrues on the outstanding principal balance of the Note shall not reduce
the rate of interest which accrues on the outstanding principal balance of the
Note below the Highest Lawful Rate until the total amount of interest accrued
on the outstanding principal balance of the Note equals the amount of interest
which would have accrued if such interest rate had at all times been in effect.
The terms and provisions of this Section 5.6 shall control and supersede every
other provision of all Loan Documents.
(b) To the extent that Texas law is applicable to the determination of
the Highest Lawful Rate, the Lender and the Borrower agree that (i) if Article
1.04, Subtitle 1, Title 79 of the Revised Civil Statutes of Texas, 1925, as
amended, is applicable to such determination, the indicated rate ceiling
computed from time to time pursuant to Section (a) of such Article shall apply,
provided that, to the extent permitted by such Article, the Lender may from
time to time by notice to the Borrower revise the election of such interest
rate ceiling as such ceiling affects the then current or future balances of the
Advance; and (ii) the provisions of Chapter 15 of Subtitle 3, Title 79, of the
Revised Civil Statutes of Texas, 1925, as amended, shall not apply to this
Agreement or the Note.
SECTION 5.7 Severability.
--------------------------
In case any one or more of the provisions contained in any Loan Document
or in any instrument contemplated thereby, or any application thereof, shall
be invalid, illegal, or unenforceable in any respect, the validity, legality,
and enforceability of the remaining provisions contained therein, and any other
application thereof, shall not in any way be affected or impaired thereby.
Each covenant contained in any Loan Document shall be construed (absent an
express contrary provision herein) as being independent of each other covenant
contained therein, and compliance with any one covenant shall not (absent such
an express contrary provision) be deemed to excuse compliance with one or more
other covenants.
SECTION 5.8 FINAL AGREEMENT.
-----------------------------
THIS WRITTEN AGREEMENT AND THE NOTE REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
<PAGE>
SECTION 5.9 Governing Law.
---------------------------
This Agreement and the Note shall be governed by, and construed in
accordance with, the laws of the State of Texas.
SECTION 5.10 Execution in Counterparts.
----------------------------------------
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
BORROWER:
/s/ Boone Pickens
----------------------------------
BOONE PICKENS
LENDER:
/s/ Fayez S. Sarofim
----------------------------------
FAYEZ S. SAROFIM
<PAGE>
EXHIBIT 2.2(d)
PROMISSORY NOTE
$4,000,000 ___________, 1994
FOR VALUE RECEIVED, the undersigned, BOONE PICKENS (the "Borrower"),
HEREBY PROMISES TO PAY to the order of FAYEZ S. SAROFIM (the "Lender"), on or
before the Termination Date, the principal sum of FOUR MILLION DOLLARS
($4,000,000) or, if less, the principal amount of the Advance made by the
Lender to the Borrower and outstanding on the Termination Date, in accordance
with the terms and provisions of that certain Loan Agreement, dated as of April
13, 1994 between the Borrower and the Lender (the "Loan Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Loan Agreement.
The outstanding principal balance of this Note shall be due and payable
in the manner set forth in the Loan Agreement. The Borrower promises to pay
interest on the unpaid principal balance of this Note from the date of the
Advance evidenced by this Note until the principal balance thereof is paid in
full. Interest shall accrue on the outstanding principal balance of this Note
from and including the date of any Advance evidenced by this Note to but not
including the Termination Date at the rate or rates, and shall be due and
payable on the dates, set forth in the Loan Agreement. Any amount not paid
when due with respect to principal (whether at stated maturity, by acceleration
or otherwise), costs or expenses, or, to the extent permitted by applicable
law, interest, shall bear interest from the date when due to and excluding the
date the same is paid in full, payable on demand, at the rate provided for in
Section 2.4 of the Loan Agreement.
Payments of principal and interest, and all amounts due with respect to
costs and expenses, shall be made in lawful money of the United States of
America in immediately available funds, without deduction, set-off or
counterclaim to an account maintained by the Lender at the offices of a bank
designated in writing by Lender in accordance with the terms and provisions of
the Loan Agreement, not later than 12:00 Noon ( Dallas, Texas time) on the
dates on which such payments shall become due pursuant to the terms and
provisions set forth in the Loan Agreement.
In addition to all principal and accrued interest on this Note, the
Borrower agrees to pay (a) all reasonable costs and expenses incurred by all
owners and holders of this Note in collecting this Note through any probate,
reorganization, bankruptcy or any other proceeding and (b) reasonable
attorneys' fees when and if this Note is placed in the hands of an attorney for
collection after default.
This Note is the Note provided for in, and is entitled to the benefits of,
the Loan Agreement, which Loan Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events, for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions and with the effect therein
specified, and provisions to the effect that no provision of the Loan Agreement
or this Note shall require the payment or permit the collection of interest in
excess of the Highest Lawful Rate.
Except as otherwise specifically provided for in the Loan Agreement, the
Borrower and any and all endorsers, guarantors and sureties severally waive
grace, demand, presentment for payment, notice of dishonor or default, protest,
notice of protest, notice of intent to accelerate, notice of acceleration and
diligence in collecting and bringing of suit against any party hereto, and
agree to all renewals, extensions or partial payments hereon with or without
notice, before or after maturity.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and
delivered by its thereunto duly authorized effective as of the date first above
written.
/s/ Boone Pickens
----------------------------------
BOONE PICKENS
EXHIBIT 6
LOAN AGREEMENT
Dated as of April 13, 1994
Between
BOONE PICKENS
and
JOHN L. COX
<PAGE>
TABLE OF CONTENTS
-----------------
Section
- -------
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain Defined Terms
1.2 Computation of Time Periods
1.3 Accounting Terms
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCE
2.1 The Advance
2.2 Making the Advance
2.3 Repayment
2.4 Interest
2.5 Prepayments
2.6 Payments and Computations
ARTICLE III
CONDITIONS OF LENDING
3.1 Condition Precedent to the Advance
ARTICLE IV
EVENT OF DEFAULT
4.1 Events of Default
ARTICLE V
MISCELLANEOUS
5.1 Amendments, Etc.
5.2 Notices, Etc.
5.3 No Waiver; Remedies
5.4 Costs, Expenses and Taxes
5.5 Binding Effect
5.6 Limitation on Agreements
5.7 Severability
5.8 Final Agreement
5.9 Governing Law
5.10 Execution in Counterparts
EXHIBITS
Exhibit 2.2(d) - Form of Note
<PAGE>
LOAN AGREEMENT
Dated as of April 13, 1994
BOONE PICKENS (the "Borrower"), and JOHN L. COX (the "Lender") hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms.
-----------------------------------
As used in this Loan Agreement (the "Agreement"), the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Advance" means the advance by the Lender to the Borrower pursuant
to Article II.
"Business Day" means any day other than Saturday, Sunday and any
other day on which commercial banks are authorized by law to close in
the State of Texas.
"Commitment" has the meaning specified in Section 2.1.
"Default" means any event which, with the lapse of time or giving
of notice, or both, would constitute an Event of Default.
"Events of Default" has the meaning specified in Section 4.1.
"Highest Lawful Rate" means the maximum nonusurious interest rate,
if any, that at any time or from time to time may be contracted for,
taken, reserved, charged, or received with respect to any Note or on
other amounts, if any, due to the Lender pursuant to this Agreement or
any other Loan Document under laws applicable to the Lender which are
presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now
allow.
"Loan Documents" means this Agreement, the Note and any document
or instrument executed in connection with the foregoing.
"Note" has the meaning specified in Section 2.2(c).
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Prime Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum
shall at all times be equal to the rate of interest announced publicly
by Texas Commerce Bank National Association in Houston, Texas from time
to time, as its prime commercial lending rate.
<PAGE>
"Property" means any interest or right in any kind of property or
asset, whether real, personal, or mixed, owned or leased, tangible or
intangible, and whether now held or hereafter acquired.
"Public Offering" shall mean the public offering of Securities as
described in the Registration Statement.
"Registration Statement" means the Registration Statement on Form
S-3 filed by MESA, Inc. with the Securities and Exchange Commission on
March 11, 1994 as amended by Amendment No. 1 filed on March 22, 1994
and as may be amended by any subsequent amendments thereto.
"Securities" means the common stock, par value $.01 per share, of
MESA, Inc.
"Stated Maturity Date" means the date that is the second
anniversary of the date of this Agreement.
"Termination Date" means the earlier to occur of (a) the Stated
Maturity Date, or (b) any earlier maturity date resulting from
acceleration of the outstanding principal amount of the Advance
pursuant to Section 4.1 hereof.
SECTION 1.2 Computation of Time Periods.
-----------------------------------------
In this Agreement in the computation of periods of time from a specified
date to a later specified date, unless otherwise specified herein the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
SECTION 1.3 Accounting Terms.
------------------------------
All accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCE
SECTION 2.1 The Advance.
-------------------------
The Lender agrees, on the terms and conditions hereinafter set forth, to
make an Advance to the Borrower on any Business Day during the period from the
date hereof until May 30, 1994 in an aggregate amount not to exceed $4,000,000
(such amount being the Lender's "Commitment"). Within the limits of the
Lender's Commitment, the Borrower may borrow and prepay amounts as provided in
this Article II, however Borrower may make only one Advance hereunder and shall
not have the right to reborrow any amounts repaid hereunder.
SECTION 2.2 Making the Advance.
--------------------------------
(a) The Advance hereunder shall be made on the date of the initial
closing of the Public Offering. The Advance shall be made on the Borrower's
oral or written notice ("Notice of Borrowing") given by the Borrower to the
Lender; provided however, with respect to an oral Notice of Borrowing, the
Borrower shall deliver promptly to the Lender a written confirmation of the
notice. The Notice of Borrowing shall be given not later than 10:00 A.M.
(Dallas, Texas time) on the second Business Day prior to the date of the
Advance. The Notice of Borrowing shall specify therein the requested (i) date
of the Advance, and (ii) amount of the Advance. Upon fulfillment of the
applicable conditions set forth in Article III, the Lender will make such funds
available to the Borrower. The Notice of Borrowing shall be irrevocable and
binding on the Borrower.
(b) The Borrower shall be entitled to deliver the Notice of Borrowing to
the Lender only if the Registration Statement has been declared effective by
the Securities and Exchange Commission.
(c) The amount of the Advance shall be equal to the lesser of (i) the
Commitment and (ii) 50% of the aggregate price payable by the Borrower for the
purchase of Securities in the Public Offering as described in the Registration
Statement. The proceeds of the Advance shall be used by the Borrower
exclusively for the purpose of making such purchase.
(d) The Borrower shall execute and deliver to the Lender to evidence the
Advance made by the Lender pursuant to Section 2.2(a) hereof, a promissory note
(the "Note") in the amount of the Advance. The Note shall be substantially in
the form of Exhibit 2.2(d), and shall mature on the Termination Date.
SECTION 2.3 Repayment.
-----------------------
On the Termination Date the Borrower shall repay the unpaid principal
amount outstanding of each Advance made by the Lender.
SECTION 2.4 Interest.
----------------------
The Borrower shall pay interest on the unpaid principal amount of the
Advance made by the Lender from the date of the Advance until such principal
amount shall be paid in full, at the rate per annum equal at all times to the
lesser of (i) the Prime Rate in effect from time to time and (ii) the Highest
Lawful Rate. Such interest shall be payable on the Termination Date. Such
interest shall be added to the unpaid principal amount of the Advance on each
anniversary of the date of the Advance occurring prior to the Termination Date.
SECTION 2.5 Prepayments.
-------------------------
The Borrower may, upon at least three (3) Business Days' notice to the
Lender stating the proposed date (which shall be a Business Day) and aggregate
principal amount of a prepayment, prepay the outstanding principal amounts of
the Advance in whole or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid; provided however, that all
such prepayments shall be made together with accrued interest to the date of
such prepayment on the principal amount prepaid without premium or penalty
thereon. Such notice shall be irrevocable and the payment amount specified in
such notice shall be due and payable on the prepayment date described in such
notice, together with accrued and unpaid interest on the amount prepaid.
SECTION 2.6 Payments and Computations.
---------------------------------------
(a) The Borrower shall make each payment hereunder and under the Note not
later than 12:00 Noon (Dallas, Texas time) on the day when due in U.S. dollars
to a bank designated in advance in writing by Lender, for the account of the
Lender, in same day funds.
<PAGE>
(b) All computations of interest based on the Prime Rate shall be made
on the basis of the actual number of days (including the first day but
excluding the last day) elapsed computed as if each calendar year consisted of
360 days (unless such calculation would result in interest exceeding the
Highest Lawful Rate in which event such interest shall be calculated on the
basis of a year of 365 or 366 days, as the case may be). Each determination
by the Lender of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Note shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.1 Condition Precedent to the Advance.
------------------------------------------------
The obligation of the Lender to make the Advance is subject to the
condition precedent that the Lender shall have received on or before the day
of the Advance the following, each dated such day, in form and substance
satisfactory to the Lender:
(a) a Notice of Borrowing;
(b) this Agreement, duly executed by the Borrower; and
(c) the Note to the order of the Lender.
ARTICLE IV
EVENTS OF DEFAULT
SECTION 4.1 Events of Default.
-------------------------------
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of, or interest on, the
Note when the same becomes due and payable; or
(b) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for thirty (30)
days after notice of such event given by the Lender to the Borrower; or
(c) the Borrower shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy or insolvency or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its Property and,
in the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for,
it or for any substantial part of its Property) shall occur; or
(d) Any judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower and there shall be any period
of thirty (30) consecutive days during which such judgment is not satisfied
through insurance payments or otherwise or a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect;
then, and in any such event, the Lender may, by notice to the Borrower, (i)
declare the obligation to the Advance hereunder to be terminated, whereupon the
same shall forthwith terminate, and (ii) may, by notice to the Borrower,
declare the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Note, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the obligation of the
Lender to make the Advance shall automatically be terminated and (B) the Note,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, Etc.
-----------------------------
No amendment or waiver of any provision of this Agreement or the Note, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 5.2 Notices, Etc.
--------------------------
All notices and other communications provided in connection with this
Agreement to a party to this Agreement shall be in writing (including by
facsimile transmission) unless oral notice is otherwise expressly permitted
hereunder, and shall be given to the intended recipient at the address
specified below, or such address as may be provided by written notice in
accordance with this Section 5.2. All such notices and other communications
shall be effective (a) if delivered by facsimile transmission, when received
and telephonically confirmed, (b) if delivered, when delivered at the address
of the recipient specified below, (c) if given orally, at the time given,
provided that written confirmation of such notice shall have been received in
accordance with this Section 5.2 promptly thereafter, and in no event more than
twelve (12) hours after such oral notice has been received, and (d) if mailed,
on the third calendar day after being deposited in the U.S. mail, by certified
mail, postage prepaid, return receipt requested:
i) If to Borrower:
Boone Pickens
2600 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
<PAGE>
ii) If to Lender:
John L. Cox
400 W. Wall
4th Floor
Midland, Texas 79701
SECTION 5.3 No Waiver; Remedies.
---------------------------------
No failure on the part of the Lender to exercise, and no delay in
exercising, any right under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 5.4 Costs, Expenses and Taxes.
---------------------------------------
The Borrower agrees to pay promptly on demand all costs and expenses in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents and the other documents to be
delivered under the Loan Documents, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Lender with
respect thereto and with respect to advising the Lender as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay
promptly on demand all costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 5.4.
SECTION 5.5 Binding Effect.
----------------------------
This Agreement shall become effective when it shall have been executed by
the Borrower and the Lender and thereafter shall be binding upon and inure to
the benefit of the Borrower and the Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 5.6 Limitation on Agreements.
--------------------------------------
(a) All agreements between the Borrower or the Lender, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
demand being made in respect of an amount due under any Loan Document or
otherwise, shall the amount paid, or agreed to be paid, to the Lender for the
use, forbearance, or detention of the money to be loaned under this Agreement,
the Note or any other Loan Document or otherwise or for the payment or
performance of any covenant or obligation contained herein or in any other Loan
Document exceed the Highest Lawful Rate. If, as a result of any circumstances
whatsoever, fulfillment of any provision hereof or of any of such documents,
at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury law, then,
ipso facto, the obligation to be fulfilled shall be reduced to the limit of
such validity, and if, from any such circumstance, the Lender shall ever
receive interest or anything which might be deemed interest under applicable
law which would exceed the Highest Lawful Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal amount
owing on account of the Note or the amounts owing on other obligations of the
Borrower to the Lender under any Loan Document and not to the payment of
interest, or if such excessive interest exceeds the unpaid principal balance
of the Note and the amounts owing on other obligations of the Borrower to the
Lender under any Loan Document, as the case may be, such excess shall be
refunded to the Borrower. All sums paid or agreed to be paid to the Lender for
the use, forbearance, or detention of the indebtedness of the Borrower to the
Lender shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full term of such indebtedness
until payment in full of the principal (including the period of any renewal or
extension thereof) so that the interest on account of such indebtedness shall
not exceed the Highest Lawful Rate. Notwithstanding anything to the contrary
contained in any Loan Document, it is understood and agreed that if at any time
the rate of interest which accrues on the outstanding principal balance of the
Note shall exceed the Highest Lawful Rate, the rate of interest which accrues
on the outstanding principal balance of the Note shall be limited to the
Highest Lawful Rate, but any subsequent reductions in the rate of interest
which accrues on the outstanding principal balance of the Note shall not reduce
the rate of interest which accrues on the outstanding principal balance of the
Note below the Highest Lawful Rate until the total amount of interest accrued
on the outstanding principal balance of the Note equals the amount of interest
which would have accrued if such interest rate had at all times been in effect.
The terms and provisions of this Section 5.6 shall control and supersede every
other provision of all Loan Documents.
(b) To the extent that Texas law is applicable to the determination of
the Highest Lawful Rate, the Lender and the Borrower agree that (i) if Article
1.04, Subtitle 1, Title 79 of the Revised Civil Statutes of Texas, 1925, as
amended, is applicable to such determination, the indicated rate ceiling
computed from time to time pursuant to Section (a) of such Article shall apply,
provided that, to the extent permitted by such Article, the Lender may from
time to time by notice to the Borrower revise the election of such interest
rate ceiling as such ceiling affects the then current or future balances of the
Advance; and (ii) the provisions of Chapter 15 of Subtitle 3, Title 79, of the
Revised Civil Statutes of Texas, 1925, as amended, shall not apply to this
Agreement or the Note.
SECTION 5.7 Severability.
--------------------------
In case any one or more of the provisions contained in any Loan Document
or in any instrument contemplated thereby, or any application thereof, shall
be invalid, illegal, or unenforceable in any respect, the validity, legality,
and enforceability of the remaining provisions contained therein, and any other
application thereof, shall not in any way be affected or impaired thereby.
Each covenant contained in any Loan Document shall be construed (absent an
express contrary provision herein) as being independent of each other covenant
contained therein, and compliance with any one covenant shall not (absent such
an express contrary provision) be deemed to excuse compliance with one or more
other covenants.
SECTION 5.8 FINAL AGREEMENT.
-----------------------------
THIS WRITTEN AGREEMENT AND THE NOTE REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
<PAGE>
SECTION 5.9 Governing Law.
---------------------------
This Agreement and the Note shall be governed by, and construed in
accordance with, the laws of the State of Texas.
SECTION 5.10 Execution in Counterparts.
----------------------------------------
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
BORROWER:
/s/ Boone Pickens
----------------------------------
BOONE PICKENS
LENDER:
/s/ John L. Cox
----------------------------------
JOHN L. COX
<PAGE>
EXHIBIT 2.2(d)
PROMISSORY NOTE
$4,000,000 ___________, 1994
FOR VALUE RECEIVED, the undersigned, BOONE PICKENS (the "Borrower"),
HEREBY PROMISES TO PAY to the order of JOHN L. COX (the "Lender"), on or before
the Termination Date, the principal sum of FOUR MILLION DOLLARS ($4,000,000)
or, if less, the principal amount of the Advance made by the Lender to the
Borrower and outstanding on the Termination Date, in accordance with the terms
and provisions of that certain Loan Agreement, dated as of April 13, 1994
between the Borrower and the Lender (the "Loan Agreement"). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Loan Agreement.
The outstanding principal balance of this Note shall be due and payable
in the manner set forth in the Loan Agreement. The Borrower promises to pay
interest on the unpaid principal balance of this Note from the date of the
Advance evidenced by this Note until the principal balance thereof is paid in
full. Interest shall accrue on the outstanding principal balance of this Note
from and including the date of any Advance evidenced by this Note to but not
including the Termination Date at the rate or rates, and shall be due and
payable on the dates, set forth in the Loan Agreement. Any amount not paid
when due with respect to principal (whether at stated maturity, by acceleration
or otherwise), costs or expenses, or, to the extent permitted by applicable
law, interest, shall bear interest from the date when due to and excluding the
date the same is paid in full, payable on demand, at the rate provided for in
Section 2.4 of the Loan Agreement.
Payments of principal and interest, and all amounts due with respect to
costs and expenses, shall be made in lawful money of the United States of
America in immediately available funds, without deduction, set-off or
counterclaim to an account maintained by the Lender at the offices of a bank
designated in writing by Lender in accordance with the terms and provisions of
the Loan Agreement, not later than 12:00 Noon ( Dallas, Texas time) on the
dates on which such payments shall become due pursuant to the terms and
provisions set forth in the Loan Agreement.
In addition to all principal and accrued interest on this Note, the
Borrower agrees to pay (a) all reasonable costs and expenses incurred by all
owners and holders of this Note in collecting this Note through any probate,
reorganization, bankruptcy or any other proceeding and (b) reasonable
attorneys' fees when and if this Note is placed in the hands of an attorney for
collection after default.
This Note is the Note provided for in, and is entitled to the benefits of,
the Loan Agreement, which Loan Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events, for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions and with the effect therein
specified, and provisions to the effect that no provision of the Loan Agreement
or this Note shall require the payment or permit the collection of interest in
excess of the Highest Lawful Rate.
Except as otherwise specifically provided for in the Loan Agreement, the
Borrower and any and all endorsers, guarantors and sureties severally waive
grace, demand, presentment for payment, notice of dishonor or default, protest,
notice of protest, notice of intent to accelerate, notice of acceleration and
diligence in collecting and bringing of suit against any party hereto, and
agree to all renewals, extensions or partial payments hereon with or without
notice, before or after maturity.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and
delivered by its thereunto duly authorized effective as of the date first above
written.
/s/ Boone Pickens
----------------------------------
BOONE PICKENS
EXHIBIT 7
FORM OF LOCK-UP AGREEMENT
April 19, 1994
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Bear, Stearns & Co. Inc.
PaineWebber Incorporated
Salomon Brothers Inc
as Representatives of the several
Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, NY 10281-1201
Dear Sirs:
The undersigned has been informed that you, as Representatives of the
several Underwriters (the "Underwriters"), are planning to enter into a
Purchase Agreement (the "Purchase Agreement") with MESA Inc., a Texas
corporation (the "Company"), providing for the purchase by the Underwriters of
shares of the Company's common stock, par value $0.01 per share (the "Common
Stock"), in connection with the Company's proposed public offering.
To induce you to enter into the Purchase Agreement, and in consideration
of the purchase and public offering by the Underwriters of such shares of
Common Stock (which the undersigned considers to be in the best interests of
the Company and its shareholders and to the undersigned's benefit), the
undersigned agrees with each of the Underwriters that for a period of 120 days
from the date of the offering, the undersigned will not, without the prior
written consent of the Representatives, directly or indirectly, voluntarily
offer, sell, or otherwise voluntarily dispose of, any Common Stock or any
securities convertible into or exercisable for Common Stock owned by the
undersigned or with respect to which the undersigned has the power of
disposition (the "Restricted Securities"); provided, however, that the
foregoing restriction shall not prohibit (i) the exercise by the undersigned
of options granted to the undersigned under the Company's stock option plans,
(ii) the delivery by the undersigned to the Company of shares of Common Stock
as payment of the exercise price upon exercise of options granted to the
undersigned under the Company's stock option plans, (iii) a transfer of
Restricted Securities to any member of the undersigned's immediate family, or
a trust, corporation or other entity controlled by the undersigned, (iv) a
disposition of Restricted Securities by the undersigned acting in a fiduciary
capacity or (v) a disposition pursuant to a pledge of Restricted Securities,
but only if the pledge is or was incurred simultaneously with the making of the
debt secured by the pledge and the pledgee, upon grant of the pledge, agrees
in writing to be bound by the terms of this agreement.
This agreement shall become effective concurrently with the effectiveness
of the Purchase Agreement. If for any reason the Purchase Agreement is
terminated before the First Closing Time (as defined in the Purchase
Agreement), the agreement set forth above shall likewise be terminated. This
agreement shall be binding upon the undersigned and his, her or its respective
successors, heirs, personal representatives and assigns.
Very truly yours,
EXHIBIT 8
JOINT FILING AGREEMENT
======================
In accordance with Rule 13d-1(f) of the Securities Exchange Act of 1934,
as amended, the undersigned agree to the joint filing on behalf of each of them
a Statement on Schedule 13D (including any and all amendment thereto) with
respect to the Common Stock of MESA Inc., and further agree that this Agreement
shall be included as an Exhibit to such joint filings.
The undersigned further agree that each party hereto is responsible for
timely filing of such Statement on Schedule 13D and any amendments thereto, and
for the completeness and accuracy of the information concerning such party
contained therein; provided that no party is responsible for the completeness
or accuracy of the information concerning the other party, unless such party
knows or has reason to believe that such information is inaccurate.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original instrument, but all of such counterparts
together shall constitute but one agreement.
In evidence thereof the undersigned, being duly authorized, hereby execute
this Agreement this 28th day of April, 1994.
/s/ Boone Pickens
----------------------------------
Boone Pickens
/s/ Fayez S. Sarofim
----------------------------------
Fayez S. Sarofim
/s/ John L. Cox
----------------------------------
John L. Cox
