<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- ---------
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1999
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OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- --------- SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____ to ____
Commission file number 0-2517
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TOREADOR ROYALTY CORPORATION
----------------------------
(Exact name of registrant as specified in its charter)
Delaware 75-0991164
------------------------------ ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4809 Cole Avenue, Suite 108
Dallas, Texas 75205
- ---------------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (214) 559-3933
---------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at June 30, 1999
- -------------------------------- ----------------------------
Common Stock, $0.15625 par value 5,176,671 shares
<PAGE> 2
TOREADOR ROYALTY CORPORATION
INDEX
<TABLE>
<CAPTION>
Page
Number
------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheet
June 30, 1999 and December 31, 1998 (Unaudited) 2
Consolidated Statement of Operations
Three and Six Months Ended June 30, 1999 and 1998 (Unaudited) 3
Consolidated Statement of Cash Flows
Three and Six Months Ended June 30, 1999 and 1998 (Unaudited) 4
Notes to Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 8
Item 3. Quantitative and Qualitative Disclosure about Market Risk 13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 14
Item 2. Changes in Securities and Use of Proceeds 14
Item 3. Defaults Upon Senior Securities 14
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 15
Signatures 15
Index to Exhibits 16
</TABLE>
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
TOREADOR ROYALTY CORPORATION
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
------------ ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 91,837 $ 726,187
Short-term investments 1,094,629 1,218,291
Accounts receivable 532,757 517,442
Marketable securities 386,440 374,915
Federal income tax receivable 63,064 63,064
Assets held for sale 161,666 334,489
Other 215,959 61,130
------------ ------------
Total current assets 2,546,352 3,295,518
------------ ------------
Properties and equipment, less accumulated
depreciation, depletion and amortization 15,861,036 16,209,631
Other assets 216,036 78,873
Deferred tax benefit 119,546 198,240
------------ ------------
Total assets $ 18,742,970 $ 19,782,262
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities $ 226,851 $ 587,754
Current portion of long-term debt 720,000 720,000
------------ ------------
Total current liabilities 946,851 1,307,754
Long-term debt 7,280,000 7,880,000
------------ ------------
Total liabilities 8,226,851 9,187,754
------------ ------------
Stockholders' equity:
Preferred stock, $1.00 par value, 4,000,000
shares authorized; 160,000 issued 160,000 160,000
Common stock, $0.15625 par value, 20,000,000 shares and
10,000,000 authorized; 5,644,071 shares issued 881,886 881,886
Capital in excess of par value 8,205,037 8,202,862
Retained earnings 2,514,594 2,529,371
Accumulated other comprehensive loss (37,386) (24,922)
------------ ------------
11,724,131 11,749,197
Treasury stock at cost:
467,400 shares (1,208,012) (1,154,689)
------------ ------------
Total stockholders' equity 10,516,119 10,594,508
------------ ------------
Total liabilities and stockholders' equity $ 18,742,970 $ 19,782,262
============ ============
</TABLE>
The Company uses the successful efforts method of accounting for its oil and
gas producing activities.
See accompanying notes to the consolidated financial statements.
-2-
<PAGE> 4
TOREADOR ROYALTY CORPORATION
CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED
JUNE 30, JUNE 30,
----------- ----------- ----------- ----------
1999 1998 1999 1998
----------- ----------- ----------- ----------
<S> <C> <C> <C> <C>
Revenues:
Oil and gas sales $ 901,385 $ 454,943 $ 1,532,401 1,090,688
Lease bonuses and rentals 145,274 -- 196,625 168,664
Interest and other income 31,183 40,002 66,267 80,318
Gain on sale of properties -- -- 557,227 --
----------- ----------- ----------- ----------
Total revenues 1,077,842 494,945 2,352,520 1,339,670
----------- ----------- ----------- ----------
Costs and expenses:
Lease operating expense 112,136 139,244 256,587 307,957
Dry holes and abandonments -- 37,121 -- 108,297
Depreciation, depletion and amortization 181,879 114,971 403,027 207,746
Geological and geophysical 35,123 76,619 168,496 134,801
General and administrative 439,748 246,444 920,174 424,928
Interest expense 177,791 -- 353,898 --
----------- ----------- ----------- ----------
Total costs and expenses 946,677 614,399 2,102,182 1,183,729
----------- ----------- ----------- ----------
Income (loss) before federal income taxes 131,165 (119,454) 250,338 155,941
Provision (benefit) for federal income taxes 44,169 (40,668) 85,115 52,574
----------- ----------- ----------- ----------
Net income (loss) 86,996 (78,786) 165,223 103,367
----------- ----------- ----------- ----------
Dividends on preferred shares 90,000 -- 180,000 --
----------- ----------- ----------- ----------
Income (loss) applicable to common shares $ (3,004) $ (78,786) $ (14,777) $ 103,367
=========== =========== =========== ==========
Basic income (loss) per share $ 0.00 $ (0.02) $ 0.00 $ 0.02
=========== =========== =========== ==========
Diluted income (loss) per share $ 0.00 $ (0.02) $ 0.00 $ 0.02
=========== =========== =========== ==========
Weighted average shares outstanding
Basic 5,178,338 5,115,546 5,192,004 5,052,652
Diluted 5,195,421 5,115,546 5,209,087 5,113,155
</TABLE>
See accompanying notes to the consolidated financial statements.
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<PAGE> 5
TOREADOR ROYALTY CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- -------------------------
1999 1998 1999 1998
---------- ----------- --------- -----------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 86,996 $ (78,786) $ 165,223 $ 103,367
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation, depletion and amortization 181,879 114,971 403,027 207,746
Dry holes and abandonments -- 37,121 -- 108,297
Gain on sale of oil and gas properties -- -- (557,227) --
Decrease (increase) in accounts receivable (10,611) 87,705 (15,315) 92,423
Decrease (increase) in federal income tax receivable -- (26,793) -- 1,719
Increase in other current assets (65,063) (18,047) (154,829) (12,529)
Increase (decrease) in accounts payable and accrued liabilities (316,766) 44,946 (360,903) (50,681)
Decrease (increase) in other assets (155,435) -- (137,163) 15,945
Decrease (increase) in deferred tax benefit 44,169 (13,875) 85,115 34,910
Other -- -- 2,175 --
--------- ----------- --------- -----------
Net cash provided (used) by operating activities (234,831) 147,242 (569,897) 501,197
--------- ----------- --------- -----------
Cash flows from investing activities:
Expenditures for oil and gas property and equipment (16,088) (304,534) (92,737) (644,394)
Proceeds from lease bonuses and rentals 76,500 -- 76,500 --
Sale of short-term investments 490,000 -- 123,662 --
Purchases of marketable securities 1 -- (30,410) --
Proceeds from sale of oil and gas properties -- -- 740,050 --
Purchase of furniture and fixtures (4,928) -- (48,195) --
--------- ----------- --------- -----------
Net cash provided (used) by investing activities 545,485 (304,534) 768,870 (644,394)
--------- ----------- --------- -----------
Cash flows from financing activities:
Proceeds from issuance of common stock -- 512,002 -- 677,766
Payment of long-term debt (340,000) -- (600,000) --
Payment of preferred dividends (90,000) -- (180,000) --
Purchase of treasury stock (53,323) -- (53,323) (95,250)
--------- ----------- --------- -----------
Net cash provided (used) by financing activities (483,323) 512,002 (833,323) 582,516
--------- ----------- --------- -----------
Net increase (decrease) in cash and cash equivalents (172,669) 354,710 (634,350) 439,319
Cash and cash equivalents, beginning of period 264,506 2,961,261 726,187 2,876,652
--------- ----------- --------- -----------
Cash and cash equivalents, end of period $ 91,837 $ 3,315,971 $ 91,837 $ 3,315,971
========= =========== ========= ===========
Supplemental schedule of cash flow information:
Cash paid during the period for:
Interest expense $ 204,848 $ -- $ 304,233 --
</TABLE>
See accompanying notes to the consolidated financial statements.
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<PAGE> 6
TOREADOR ROYALTY CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the three and six months ended June 30, 1999 and 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
These consolidated financial statements should be read in the context
of the consolidated financial statements and notes thereto filed with the
Securities and Exchange Commission in the 1998 Annual Report on Form 10-K of
Toreador Royalty Corporation (the "Company"). In the opinion of the Company's
management, the information furnished herein reflects all adjustments,
consisting of only normal recurring adjustments, necessary for a fair
presentation of the results of the interim periods reported herein. Operating
results for the six months ended June 30, 1999 may not necessarily be
indicative of the results for the year ending December 31, 1999.
NOTE 2 - MARKETABLE SECURITIES
Marketable securities at June 30, 1999 consist of several issues of
preferred stock with a fair market value of $386,440 as of June 30, 1999. The
net unrealized loss related to these securities before taxes is $56,646
($37,386 net of tax). The Company has designated these investments as
"securities available for sale" pursuant to Statement of Financial Accounting
Standards No. 115.
NOTE 3 - NON-PRODUCING MINERAL AND ROYALTY INTERESTS
Principal properties include perpetual mineral and royalty interests
acquired by the Company during 1951, 1958 and 1998. These interests total
approximately 1,356,000 net mineral acres underlying approximately 2,579,000
gross acres. These properties include 1,775,000 gross (876,000 net) acres in
Mississippi, Alabama and Louisiana and 804,000 gross (480,000 net) acres
located in the Texas Panhandle and West Texas. It is recognized that the
ultimate realization of the investment in these properties is dependent upon
future exploration and development operations which are dependent upon
satisfactory leasing and drilling arrangements with others and a favorable oil
and gas price environment.
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<PAGE> 7
TOREADOR ROYALTY CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the three and six months ended June 30, 1999 and 1998
NOTE 4 - ASSET DISPOSITION
Assets held for sale consist of undeveloped mineral and royalty interests which
the Company is currently marketing. In the first quarter of 1999 the Company
sold a portion of the acreage for $777,550 resulting in a pretax gain of
$557,227.
NOTE 5 - INTEREST AND OTHER INCOME
Items in interest and other income consist of:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------- --------
1999 1998 1999 1998
------- ------- ------- -------
<S> <C> <C> <C> <C>
Interest $11,829 $39,387 $34,872 $76,613
Dividends 7,123 -- 18,456 --
Other Income 12,231 615 12,939 3,705
------- ------- ------- -------
$31,183 $40,002 $66,267 $80,318
======= ======= ======= =======
</TABLE>
NOTE 6 - COMPREHENSIVE INCOME
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standard No. 130, "Reporting Comprehensive Income." Comprehensive
income consists of:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------- --------
1999 1998 1999 1998
------- -------- --------- --------
<S> <C> <C> <C> <C>
Net income $86,996 $(78,786) $ 165,223 $103,367
Unrealized losses on securities -- -- (12,464) --
------- -------- --------- --------
Comprehensive income $86,996 $(78,786) $ 152,759 $103,367
======= ======== ========= ========
</TABLE>
NOTE 7 - LONG-TERM DEBT
The credit facility was amended on April 16, 1999 to increase the size
of the facility to $25.0 million. The borrowing base ($2.7 million as of June
30,1999) and all other material terms and conditions remain the same.
-6-
<PAGE> 8
TOREADOR ROYALTY CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the three and six months ended June 30, 1999 and 1998
NOTE 8 - EARNINGS PER ORDINARY SHARE
The following table reconciles the numerators and denominators of the
basic and diluted earnings per ordinary share computation for earnings from
continuing operations:
<TABLE>
<CAPTION>
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
<S> <C> <C> <C>
Six months ended June 30, 1999:
Net income $ 165,223
Less: Dividends on preferred shares 180,000
-----------
Loss applicable to common shares (14,777)
Basic income per share 5,192,004 $0.00
=====
Effect of dilutive securities:
Stock options -- 17,083
----------- ---------
Income applicable to common shares and
assumed conversions $ (14,777) 5,209,087 $0.00
=========== ========= =====
</TABLE>
<TABLE>
<CAPTION>
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
<S> <C> <C> <C>
Six months ended June 30, 1998:
Net income 103,367
Basic income per share 5,052,652 $0.02
=====
Effect of dilutive securities:
Stock options -- 60,503
----------- ---------
Income applicable to common shares and
assumed conversions $ 103,367 5,113,155 $0.02
=========== ========= =====
</TABLE>
-7-
<PAGE> 9
TOREADOR ROYALTY CORPORATION
For the three and six months ended June 30, 1999 and 1998
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
DISCLOSURES REGARDING FORWARD-LOOKING STATEMENTS
This report on Form 10-Q includes "forward-looking statements" within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. All statements
other than statements of historical facts included in this Form 10-Q,
including, without limitation, statements contained in this "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
regarding the Company's financial position, business strategy, plans and
objectives of management of the Company for future operations, and industry
conditions, are forward-looking statements. Although the Company believes that
the expectations reflected in such forward-looking statements are reasonable,
it can give no assurance that such expectations will prove to be correct. Any
forward-looking statements herein are subject to certain risks and
uncertainties inherent in petroleum exploration, development and production,
including, but not limited to the risk that no commercially productive oil and
gas reservoirs will be encountered; the risk that acquisitions of additional
producing properties may not be feasible, or that such acquisitions may not be
profitable; inconclusive results from 3-D seismic projects; delays or
cancellation of drilling operations as a result of a variety of factors;
volatility of oil and gas prices due to economic and other conditions; intense
competition in the oil and gas industry; operational risks (e.g., fires,
explosions, blowouts, cratering and loss of production); insurance coverage
limitations and requirements; and potential liability imposed by intense
governmental regulation of oil and gas production; all of which are beyond the
control of the Company. Any one or more of these factors could cause actual
results to differ materially from those expressed in any forward-looking
statement. All subsequent written and oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified in their entirety by the cautionary statements disclosed in this
paragraph and otherwise in this report.
LIQUIDITY AND CAPITAL RESOURCES
Historically, most of the exploration activity on our acreage has been
funded and conducted by other oil companies. Exploration activity by third party
oil companies typically generates lease bonus and option income to us. If such
drilling is successful, we receive royalty income from the oil or gas production
but bear none of the capital or operating costs. Since the middle of 1996, we
have successfully accelerated the evaluation of several areas of our Texas
mineral acreage as well as increased our ownership in any reserves that were
discovered by third parties conducting 3-D seismic projects (without cost to us)
and selectively participate in any wells drilled as a result of such geophysical
activity. At this time we have discontinued this policy.
-8-
<PAGE> 10
TOREADOR ROYALTY CORPORATION
For the three and six months ended June 30, 1999 and 1998
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
We have shifted our exploration focus to geologic regions, particularly
those areas with proven and attractive gas reserves, that can provide
potentially better rates of return on our capital resources. We also plan to
evaluate 3-D seismic projects or drilling prospects generated by third party
operators. If judged geologically and financially attractive by our management,
we will enter into joint ventures on those third party projects or prospects
which are within the capital exploration budget approved by our board of
directors.
We also intend to actively evaluate opportunities to acquire producing
properties that represent unique opportunities for us to add additional
reserves to our reserve base. Any such acquisitions will be financed using cash
on hand, third party sources, existing credit facilities or any combination
thereof.
Our remaining 1999 capital and exploratory budget, excluding any
acquisitions we may make, could range from $200,000 to $400,000, depending on
the timing of any new seismic surveys and drilling of exploratory and
development wells in which we may hold a working interest position.
At the present time, the primary source of capital for financing our
operations is our cash flow from operations and proceeds from oil and gas
properties sold. During the first six months of 1999, cash flow provided by
operations and oil and gas properties sold was $170,154.
On November 13, 1997 we obtained a credit facility from Compass Bank.
The credit facility contains borrowing base restrictions and various
affirmative and negative covenants. These covenants, among other things, limit
additional indebtedness, the sale of assets and the payment of dividends,
change of control and require us to meet certain financial tests. We must
maintain a ratio of current assets to current liabilities of at least 1:1.
The credit facility was amended on April 16, 1999 to increase the size
of the facility to $25.0 million. The borrowing base ($2.7 million as of June
30,1999) and all other material terms and conditions remain the same.
We may reinvest proceeds from option and lease bonuses by taking a
working interest in 3-D seismic projects or in wells. To the extent cash flow
from operations does not significantly increase and external sources of capital
are limited or unavailable, our ability to make the capital investment to
participate in 3-D seismic surveys and increase our interest in projects on our
acreage will be limited. Future funds are expected to be provided through
production from existing producing properties and new producing properties that
may be discovered through exploration of our acreage by third parties or by
ourselves. Funds may also be provided through external financing in the form of
debt or equity. There can be no assurance as to the extent and availability of
these sources of funding.
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<PAGE> 11
TOREADOR ROYALTY CORPORATION
For the three and six months ended June 30, 1999 and 1998
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
We maintain our excess cash funds in interest-bearing deposits,
managed funds in short-term securities and in marketable securities. In
addition to the properties described above, we also may acquire other producing
oil and gas assets, which could require the use of debt, including the
aforementioned credit facility or other forms of financing. Our management
believes that sufficient funds are available from internal sources and other
third party sources to meet anticipated capital requirements for fiscal 1999.
From October 10, 1995 through July 27, 1999 we have used $1,223,140 of
our cash reserves to purchase 461,700 shares of our Common Stock pursuant to
three share repurchase programs approved by the board of directors. On July 23,
1998, our board of directors suspended the policy of share repurchases for the
time being to instead use the Company's excess cash resources toward funding
our participation in third party operated 3-D projects or drilling prospects
and acquisition of producing oil and gas properties. On March 23, 1999, our
board of directors reinstated the common stock repurchase program enabling the
Company to purchase the remaining shares available under the third stock
repurchase plan from time to time and depending on market conditions. There are
approximately 88,000 shares authorized and available for repurchase under the
third plan.
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1999 VS.
THREE MONTHS ENDED JUNE 30, 1998
Revenues for the second quarter of 1999 were $1,077,842 versus
$494,945 for the same period in 1998. Oil and gas sales were $901,385 on
volumes of 30,748 Bbls of oil and 213,983 Mcf of natural gas for the second
quarter of 1999 as compared to $454,943 on volumes of 28,004 Bbls and 51,779
Mcf in 1998. This increase in oil and gas sales reflects an increase in oil and
gas volumes from the Howell Mineral Acquisition in addition to a slight
increase in oil and gas prices. The average price for second quarter 1999 oil
sales increased 20% to $15.84/Bbl compared to $13.20/Bbl for the same quarter
in 1998. The average price for second quarter 1999 gas sales increased 6% to
$1.79/Mcf compared to $1.68/Mcf for the same period in 1998. Net lease bonuses
and rentals for the second quarter of 1999 were $145,274 versus zero for the
same period in 1998 due to increased activity on acreage that was part of the
Howell Mineral Acquisition. Interest and other income were $31,183 in the
second quarter of 1999 versus $40,002 for the first quarter of 1998.
-10-
<PAGE> 12
TOREADOR ROYALTY CORPORATION
For the three and six months ended June 30, 1999 and 1998
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
Costs and expenses for the second quarter of 1999 were $946,677 versus
$614,399 for the same period in 1998. Lease operating expenses decreased 19% to
$112,136 in 1999 from $139,244 in 1998. This decrease was due in large part to
more efficient operations on one of our largest units along with the delaying
of workover projects in response to the lower oil prices in effect at the
beginning of 1999. Dry holes and abandonments were zero for the second quarter
of 1999 as compared to $37,121 for the same period in 1998. Depreciation,
depletion and amortization increased 58% to $181,879 for the second quarter of
1999 from $114,971 in 1998, primarily reflecting depletion related to the
Howell Mineral Acquisition. Geological and geophysical expenses decreased 54%
to $35,123 for the second quarter of 1999 from $76,619 in 1998. General and
administrative expenses increased 78% to $439,748 in the second quarter of 1999
from $246,444 for the same period a year ago. This increase in general and
administrative expense resulted primarily from the addition of new employees
necessary for the administration of the Howell Mineral Acquisition and any
future acquisitions.
During the second quarter of 1999 the Company incurred $177,791 in
interest expense and paid $90,000 for preferred dividends related to the
financing for the Howell Mineral Acquisition. In the same period for 1998 there
were no interest or dividend payments.
The Company recognized net income of $86,996, or $0.00 per share
(basic and diluted), for the second quarter of 1999 versus net loss of $78,786,
or $0.02 per share (basic and diluted), for the same period in 1998.
RESULTS OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1999 VS.
SIX MONTHS ENDED JUNE 30, 1998
Revenues for the six months ended June 30, 1999 were $2,352,520 versus
$1,339,670 for the same period in 1998. Oil and gas sales for the six months
ended June 30, 1999 were $1,532,401 on volumes of 69,591 Bbls of oil and
391,970 Mcf of natural gas as compared to $1,090,688 on volumes of 47,981 Bbls
and 199,435 Mcf for the same period in 1998. The $441,713 increase in oil and
gas sales reflects an increase in oil and gas volumes from the Howell Mineral
Acquisition. Average oil prices decreased 16% to $11.78/Bbl for the six months
ended June 30, 1999 from $14.09/Bbl for the six months ended June 30, 1998.
Average gas prices decreased 17% to $1.74/Mcf for the six months ended June 30,
1999 from $2.09/Mcf for the six months ended June 30, 1998. Lease bonuses and
rentals increased to $196,625 for the six months ended June 30, 1999 compared
to $168,664 for the prior-year six month period. This increase was primarily
attributable to lease bonus on acreage from the Howell Mineral Acquisition.
Interest and other income for the six months ended June 30, 1999 was $66,267 in
1999, down slightly from $80,318 for the same period in 1998.
-11-
<PAGE> 13
TOREADOR ROYALTY CORPORATION
For the three and six months ended June 30, 1999 and 1998
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
Costs and expenses for the six months ended June 30, 1999 were
$2,102,182 versus $1,183,729 for the same period in 1998. Lease operating
expenses decreased to $256,587 for the six months ended June 30, 1999 from
$307,957 for the same period in 1998. Dry holes and abandonments decreased to
zero for the six period ended June 30, 1999 from $108,297 for the six months
ended June 30, 1998 reflecting the Company's decreased participation in
exploration projects on its minerals. Depreciation, depletion and amortization
increased 94% to $403,027 for the first six months in 1999 from $207,746 for the
same period in 1998, reflecting the increase in properties and equipment from
the Howell Mineral Acquisition. Geological and geophysical expenses increased
25% to $168,496 for the six months ended June 30, 1999 from $134,801 for the
prior-year period. General and administrative expenses increased to $920,174 for
the six months ended June 30, 1999 from $424,928 for the same period a year ago,
primarily due to nonrecurring costs related to the Howell Mineral Acquisition
along with increased payroll costs.
The Company recognized net income of $165,223 or $0.00 per share
(basic and diluted), for the six months ended June 30, 1999 versus net income
of $103,367, or $0.02 per share (basic and diluted), for the same period in
1998.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This statement requires companies to
record derivatives on the balance sheet as assets and liabilities, measured at
fair value. Gains and losses resulting from changes in the values of those
derivatives would be accounted for depending on the use of the derivative and
whether it qualifies for hedge accounting. This statement is not expected to
have a material impact on the Company's consolidated financial statements. This
statement is effective for all fiscal quarters of all fiscal years beginning
after June 15, 2000.
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<PAGE> 14
TOREADOR ROYALTY CORPORATION
For the three and six months ended June 30, 1999 and 1998
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
YEAR 2000 PROJECT
The year 2000 ("Y2K") problem arises because of computer programs
which use two digits rather than four digits to define a year. This may result
in miscalculations or complete system failures in processing data with programs
using date-sensitive information.
We currently use commercially available software for our management
information systems, including accounting, engineering, and word processing
applications. This software has either already been warranted by the suppliers
or publishers to be Y2K compliant or the suppliers and publishers have
represented such software will be compliant in upgrades we will receive in 1999
at minimal or no cost to us.
We have completed our review of our internal computer systems and we
have determined that these systems are Y2K compliant. As of June 30, 1999, all
costs incurred by us in connection with our compliance efforts were included in
general and administrative expenses. As of June 30, 1999, the total cost
incurred was approximately $22,000. Management expects any additional Y2K
compliance costs to be minimal because our management information systems are
warranted to be compliant or are represented to be compliant in upgrades we
will receive. Furthermore, we replaced our former oil and gas system in 1998
with a Y2K compliant oil and gas package. Management is in the process of
obtaining confirmation from our major suppliers and purchasers that they also
are or will be Y2K compliant. The costs of seeking such confirmation are
expected to be minimal. Management believes that it will not be practical to
independently verify the responses because it does not believe that we would be
given access to carry out such verification or that the costs of doing so would
be affordable. The cost of replacing non-compliant or non-responsive suppliers
and customers will not be possible to determine until the review process has
been completed. Any Y2K problems that do occur will likely manifest themselves
in reduced production through equipment shut downs or impaired liquidity
through inability of customers to take delivery of production or process
payments. We plan to establish contingency plans once our confirmation program
is complete and the risks have been more fully quantified.
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
Inapplicable.
-13-
<PAGE> 15
TOREADOR ROYALTY CORPORATION
June 30,1999
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS -- Inapplicable.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS -- Inapplicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES -- Inapplicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the Company's Annual Meeting of Stockholders held on Thursday, May
20, 1999, the Company's Amended and Restated 1990 Stock Option Plan was
approved with 2,507,141 votes in favor of approval, 111,365 votes against and
106,300 votes abstaining. The amendment to the Company's Certificate of
Incorporation to increase the number of authorized shares of the Company's
Common Stock was approved with 2,617,101 votes in favor of approval, 103,841
votes against and 3,864 votes abstaining.
ITEM 5. OTHER INFORMATION -- Inapplicable
-14-
<PAGE> 16
TOREADOR ROYALTY CORPORATION
June 30, 1999
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) The following exhibits are included herein:
No. Description of Exhibit:
--- -----------------------
10.1 Amended and Restated Credit Agreement, dated April 16,
1999, between Toreador Royalty Corporation and Toreador
Exploration & Production, Inc. and Compass Bank.
27 Financial Data Schedule
(b) Reports on Form 8-K:
1. Current Report on Form 8-K dated May 24, 1999, filed June 1,
1999, reporting information under Item 4, regarding a change in
the Company's independent accountant, as amended by Current
Report on Form 8-K/A-1 filed June 7, 1999, and by Current Report
on Form 8-K/A-2 filed June 30, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TOREADOR ROYALTY CORPORATION,
Registrant
/s/ G. Thomas Graves III
-------------------------------------------
G. Thomas Graves III,
President and Chief Executive Officer
/s/ Douglas W. Weir
-------------------------------------------
Douglas W. Weir
Vice President-Finance and Treasurer
(Principal Financial and Accounting Officer)
August 6, 1999
-15-
<PAGE> 17
TOREADOR ROYALTY CORPORATION
June 30, 1999
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibits
------- -------------------------------------------------------------------------------------------------
<S> <C>
10.1 - Amended and Restated Credit Agreement, dated April 16,
1999, between Toreador Royalty Corporation and Toreador
Exploration & Production, Inc. and Compass Bank
27 - Financial Data Schedule
</TABLE>
-16-
<PAGE> 1
EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT BETWEEN
COMPASS BANK,
as Lender
AND
TOREADOR ROYALTY CORPORATION
AND
TOREADOR EXPLORATION & PRODUCTION, INC.,
As Borrowers
APRIL 16, 1999
REVOLVING LINE OF CREDIT OF UP TO $25,000,000
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE I
DEFINITIONS 1
SECTION 1.1 Definitions 1
ARTICLE II
COMMITMENT TO LEND 13
SECTION 2.1 Commitment 13
SECTION 2.2 Method of Borrowing and Obtaining Letters of
Credit 13
SECTION 2.3 Note 14
SECTION 2.4 Certain Payments and Prepayments of Principal 14
SECTION 2.5 Interest 15
SECTION 2.6 Commitment, Engineering, Facility and Letter of
Credit Fees: Authorized Payments by Lender 15
SECTION 2.7 Termination of Revolving Commitment 15
SECTION 2.8 Determination of Borrowing Base: Automatic
Reductions in Borrowing Base: Borrowing Base
Deficiency 16
ARTICLE III
GENERAL PROVISIONS 17
SECTION 3.1 General Provisions as to Payments and Loans 17
SECTION 3.2 Computation of Interest 17
SECTION 3.3 Overdue Principal and Interest 18
ARTICLE IV
COLLATERAL 18
SECTION 4.1 Security 18
ARTICLE V
CONDITIONS PRECEDENT TO LOAN 18
SECTION 5.1 All Loans and Letters of Credit 18
SECTION 5.2 Initial Loan. In the case of the initial Loan 19
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS 21
SECTION 6.1 Existence and Power 21
SECTION 6.2 Corporate and Governmental Authorization:
Contravention 21
SECTION 6.3 Binding Effect 21
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 6.4 Subsidiaries: Ownership 22
SECTION 6.5 Disclosure 22
SECTION 6.6 Financial Information 22
SECTION 6.7 Litigation 22
SECTION 6.8 Plans 23
SECTION 6.9 Taxes and Filing of Tax Returns 23
SECTION 6.10 Title to Properties: Liens: Environmental Liability 23
SECTION 6.11 Business: Compliance 23
SECTION 6.12 Licenses. Permits. Etc 23
SECTION 6.13 Compliance with Law 24
SECTION 6.14 Governmental Consent 24
SECTION 6.15 Investment Company Act 24
SECTION 6.16 Public Utility Holding Company Act; State Utility 24
SECTION 6.17 Year 2000 Preparedness 24
SECTION 6.18 Refunds: Certain Contracts 24
SECTION 6.19 No Default 25
ARTICLE VII
COVENANTS 25
SECTION 7.1 Use of Proceeds and Letters of Credit 25
SECTION 7.2 Financial Statements: Reserve Reports;
Compliance Certificates; Certain Notices 25
SECTION 7.3 Inspection of Properties and Books 28
SECTION 7.4 Maintenance of Security; Insurance; Operating
Accounts; Transfer Orders 28
SECTION 7.5 Payment of Taxes and Claims 28
SECTION 7.6 Payment of Debt; Additional Debt 29
SECTION 7.7 Liens 29
SECTION 7.8 Loans and Advances to Others; Investments;
Restricted Payments 29
SECTION 7.9 Consolidation, Merger, Maintenance, Change of
Control; Disposition of Property; Restrictive
Agreements; Hedging Agreements 29
SECTION 7.10 Primary Business; Location of Each borrower's
Office; Ownership of Assets 30
SECTION 7.11 Operation of Properties and Equipment; Changes
to Certain Contracts 31
SECTION 7.12 Transactions with Affiliates 31
SECTION 7.13 Plans 32
SECTION 7.14 Compliance with Laws and Documents 32
SECTION 7.15 Certain Financial Covenants 32
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 7.16 Additional Documents; Quantity of Documents;
Title Data: Additional Information 33
SECTION 7.17 ENVIRONMENTAL INDEMNIFICATION 33
SECTION 7.18 Year 2000 34
SECTION 7.19 Securities Listing 34
SECTION 7.20 Exceptions to Covenants 34
ARTICLE VIII
DEFAULTS; REMEDIES 34
SECTION 8.1 Events of Default: Acceleration of Maturity 34
SECTION 8.2 Suits for Enforcement 37
SECTION 8.3 Remedies Cumulative 37
SECTION 8.4 Remedies Not Waived 37
ARTICLE IX
MISCELLANEOUS 37
SECTION 9.1 Amendments and Waivers 37
SECTION 9.2 Highest Lawful Interest Rate 37
SECTION 9.3 INDEMNITY 38
SECTION 9.4 Expenses 38
SECTION 9.5 Taxes 39
SECTION 9.6 Notices 39
SECTION 9.7 Right of Set-Offs 40
SECTION 9.8 Survival 40
SECTION 9.9 Successors and Assigns; Rights of Other Holders 40
SECTION 9.10 Applicable Law; Venue; Waiver of Jury Trial 41
SECTION 9.ll Headings 41
SECTION 9.12 Counterparts 41
SECTION 9.13 Invalid Provisions, Severability 42
SECTION 9.14 Revolving Loan 42
SECTION 9.15 Preclusion of Oral Agreements 43
</TABLE>
FORM OF PROMISSORY NOTE
FORM OF NOTICE OF BORROWING
FORM OF COMPLIANCE CERTIFICATE
OFFICERS' CORPORATE CERTIFICATE (Toreador Royalty Corporation)
OFFICERS' CORPORATE CERTIFICATE (Toreador Exploration & Production, Inc.)
OFFICERS' CORPORATE CERTIFICATE (Tormin, Inc.)
FORM OF CERTIFICATE OF OWNERSHIP INTERESTS
iii
<PAGE> 5
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of April
16, 1999, by and between Toreador Royalty Corporation, a Delaware corporation,
and Toreador Exploration & Production, Inc., a Texas corporation, as Borrowers,
and COMPASS BANK, an Alabama state bank, as Lender.
RECITALS:
A. Toreador Royalty Corporation (the "Parent") and Toreador Exploration
& Production, Inc ("Toreador Exploration"), entered into that certain Loan
Agreement dated November 13, 1997 with Compass Bank (as previously amended, the
"Prior Loan Agreement"), pursuant to which the Parent and Toreador Exploration
issued their promissory note in the original principal sum of $10,000,000 (the
"Prior Note");
B. The Parent and Toreador Exploration wish to further amend the Loan
Agreement and provide for the issuance of a $25,000,000 promissory note in
replacement and renewal of the Prior Note;
C. The Parent and Toreador Exploration have obtained the agreement of
Tormin, Inc., a Delaware corporation, to guarantee the indebtedness of the
Parent and Toreador Exploration to Compass Bank as additional collateral for the
obligations of the Parent and Toreador Exploration to Compass Bank; and
D. Compass Bank is willing to amend and restate the Prior Loan
Agreement upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 11 ~ The following terms, as used herein, have the following
meanings:
"Acceptable Hedging Agreements" means Hedging Agreements meeting all
the following criteria:
(a) The quantity of hydrocarbons owned by the Borrowers subject to
Hedging Agreements shall not be greater than 75% of the monthly production of
the Collateral forecast in
1
<PAGE> 6
the Lender's most recent engineering evaluation delivered to the Borrowers,
without the prior written approval of the Lender;
(b) The "strike prices" under any Hedging Agreements shall not be less
than the lowest prices utilized in the Lender's most recent base case evaluation
of the Collateral reported to the Borrowers, except that under certain downside
conditions such lower strike price as the Lender may approve in writing
following a written request by the Borrowers;
(c) The Lender must have given its written consent to the
counter-parties under the Hedging Agreements; and
(d) The Lender shall have received first and prior perfected security
interests pursuant to security agreements in form and substance reasonably
satisfactory to the Lender in and to the Hedging Agreements.
"Affiliate" means any Person directly or indirectly controlling, or
under common control with, either Borrower and includes any Subsidiary of either
Borrower and any "affiliate" of either Borrower within the meaning of Reg.
Section 240.12b-2 of the Securities Exchange Act of 1934, as amended, with
"control," as used in this definition, meaning possession, directly or
indirectly, of the power to direct or cause the direction of management,
policies or action through ownership of voting securities, contract, voting
trust, or membership in management or in the group appointing or electing
management or otherwise through formal or informal arrangements or business
relationships. The term "Affiliate" shall include Affiliates of Affiliates (and
so on). The term "Affiliate" shall also include Guarantor and its Subsidiaries.
"Agreement" means this Amended and Restated Credit Agreement, as the
same may hereafter be modified or amended from time to time.
"Borrowers" mean the Parent and Toreador Exploration.
"Borrowing Base" means the amount most recently determined and
designated by the Lender as the Borrowing Base in accordance with Section
2.8(a), but in no event in excess of the Commitment Amount, as such Borrowing
Base is reduced in accordance with Section 2.8(b). The Borrowing Base under
Section 2.8(a) is deemed to be $2,580,000 as of the Closing Date.
"Borrowing Base Deficiency" means, as of the date of determination of a
new Borrowing Base under Section 2.8(a), the amount, if any, by which the
outstanding principal balance of the Loans plus the UC Exposure exceeds the
Borrowing Base.
"Business Day" means any day (other than Saturdays and Sundays) on
which the Lender is open for general banking business in Dallas, Texas.
"CBIR Rate" means, on any day, the prime rate as published in The Wall
Street Journal's "Money Rates" table for such day. If multiple prime rates are
quoted in such table, then the highest
2
<PAGE> 7
prime rate quoted therein shall be the CBIR Rate. In the event that a prime rate
is not published in The Wall Street Journal's "Money Rates" table, the Lender
will choose a substitute CIBIR Rate, for purposes of calculating the interest
rate applicable hereunder, which is based on comparable information, until such
time as a prime rate is published in The Wall Street Journal's "Money Rates"
table. Each change in the CBIR Rate shall become effective without notice to the
Borrowers on the effective date of each such change.
"Change of Control Event" means the failure of the Parent to own and
control at least 100% of every class of equity interests of Toreador Exploration
or the failure of the Parent to own and control 100% of every class of equity
interests in the Guarantor.
"Closing" means the consummation of the transactions contemplated
herein.
"Closing Date" means the date of this Agreement
"Collateral" means the Property pledged to the Lender as security for
the Note.
"Collateral Value" means, with respect to any Property, the positive
dollar amount which such Property contributed to the most recently determined
Borrowing Base.
"Commission" means the Securities and Exchange Commission.
"Commitment" means the Revolving Commitment.
"Commitment Amount" means the amount of $25,000,000.
"Commonly Controlled Entity" means any Person which is under common
control with either Borrower within the meaning of Section 4001 of ERISA.
"Compliance Certificate" means a certificate, substantially in the form
attached hereto entitled "Form of Compliance Certificate", executed by a
Responsible Officer of the Parent and furnished to the Lender from time to time
in accordance with Section 7.2(a).
"Debt" of any Person means at any date, without duplication:
(a) all obligations of such Person for money borrowed, including,
without limitation, (i) the obligations of such Person for money borrowed by a
partnership of which such Person is a general partner, (ii) obligations which
are secured in whole or in part by the Property of such Person, and (iii) any
obligations of such Person in respect of letters of credit and repurchase
agreements;
(b) all obligations of such Person evidenced by notes, debentures,
bonds or similar instruments;
3
<PAGE> 8
(c) all obligations of such Person to pay the deferred purchase price
of property or services (except trade accounts arising in the ordinary course of
business if interest is not paid or accrued thereon);
(d) all obligations of such Person as lessee under capital leases,
other than usual and customary oil and gas leases;
(e) all mandatory redemption and repurchase obligations of such Person
for preferred stock or other equity securities which have a mandatory redemption
or repurchase date prior to Final Maturity; and
(f) all Guarantees by such Person of Debt of another Person.
"Default" means the occurrence of an Event of Default or any event
which with notice, lapse of time or both would, unless cured or waived, become
an Event of Default.
"Default Rate" means a per annum interest rate equal to the CBIR Rate
PLUS five percent (plus 5.0%), but in no event exceeding the Highest Lawful
Rate.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America
"Environmental Laws" means: any law, statute, regulation, order or rule
promulgated by any Governmental Authority, whether local, state or federal
relating to air pollution, water pollution, noise control and/or transporting,
storing, handling, discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, as each of the foregoing may be amended from
time to time.
"Environmental Liability" means any claim, demand, obligation, cause of
action, accusation, allegation, order, violation, damage, injury, judgment,
penalty or fine cost of enforcement, cost of remedial action or any other cost
or expense whatsoever, including reasonable attorneys, fees and disbursements,
resulting from the violation or alleged violation of any Environmental Law or
the imposition of any Environmental Lien.
"Environmental Lien" means a Lien in favor of a Tribunal or other
Person (i) for any liability under an Environmental Law or (ii) for damages
arising from or costs incurred by such Tribunal or other Person in response to a
release or threatened release of hazardous or toxic waste, substance or
constituent into the environment.
"EMSA" means the Employment Retirement Income Security Act of 1974, as
amended, together with all presently effective and future regulations issued
pursuant thereto.
"Event of Default" has the meaning stated in Section 8.1 hereof.
"Final Maturity" means October 1,2000.
4
<PAGE> 9
"Floating Rate" means (i) a per annum interest rate equal to the
difference of the CBIR Rate from time to time in effect minus one-half of one
percent (minus 1/2 of 1.0%), or (ii) at any time the outstanding principal of
the Note plus the LIC Exposure equals or exceeds 80% of the Borrowing Base in
effect at such time, a per annum interest rate equal to the CBIR Rate from time
to time in effect; but m no event exceeding in either case the Highest Lawful
Rate.
"GAAP" means 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. Any accounting principle or practice required to be changed
by the Accounting Principles Board or Financial Accounting Standards Board (or
other appropriate board or committee of such Boards) in order to continue as a
generally accepted accounting principle or practice may be so changed. In the
event of a change in GAAP, the Loan Papers shall continue to be construed in
accordance with GAAP as in existence on the date hereof
"Governmental Authority" means any nation, country, commonwealth,
territory, government, state, county, parish, municipality, or other political
subdivision and any entity exercising executive, legislative, judicial,
regulatory, or administrative functions of or pertaining to government
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply fluids for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, to make reimbursement in connection with any
letter-of-credit or to maintain financial statement conditions, by "comfort
letter" or other similar undertaking of support or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part). The term "Guarantee" includes the
pledging or other encumbrance of assets by a Person to secure the obligations of
another Person and restrictions or limitations on a Person or its assets agreed
to in connection with the obligations of another Person, but does not include
endorsements for collection or deposit in the ordinary course of business; and
"Guaranteed" by a Person shall mean the act or condition of providing a
Guarantee by such Person or permitting a Guarantee of such Person to exist.
"Guarantor" means Tormin, Inc., a Delaware corporation.
"Guaranty" means the unconditional and unlimited guaranty of the
Guarantor in favor of the Lender guarantying the Obligations of the Borrowers to
the Lender, in form and substance satisfactory to the Lender and the Guarantor.
"Hedging Agreement" means (i) any interest rate or currency swap, rate
cap, rate floor, rate collar, forward agreement, or other exchange or rate
protection agreement or any option with respect
5
<PAGE> 10
to any such transaction and (ii) any swap agreement, cap, floor, collar,
exchange transaction, forward agreement, or other exchange or protection
agreement relating to hydrocarbons or any option with respect to any such
transaction.
"Highest Lawful Rate" means the maximum non-usurious interest rate, if
any (or, if the context so requires, an amount calculated at such rate), that at
any time or from time to time may be contracted for, taken, reserved, charged,
or received under applicable laws of the State of Texas or the United States of
America, whichever authorizes the greater rate, as such laws are presently in
effect or, to the extent allowed by applicable law, as such laws may hereafter
be in effect and which allow a higher maximum non-usurious interest rate than
such laws now allow. To the extent the laws of the State of Texas are applicable
for the purpose of determining the "Highest Lawful Rate", such term shall mean
the "weekly ceiling" from time to time in effect as referred to and defined in
Chapter 303 of the Finance Code of Texas, as amended. The determination of the
Highest Lawful Rate shall, to the extent required by applicable law, take into
account as interest paid or contracted for any and all relevant payments or
charges under the Loan Documents.
"Insolvency Proceeding" of any Person means application (whether
voluntary or instituted by another Person) for or the consent to the appointment
of a receiver, trustee, conservator, custodian, or liquidator of such Person or
of all or a substantial part of the Property of such Person, or the filing of a
petition (whether voluntary or instituted by another Person) commencing a case
under Title 11 of the United States Code, seeking liquidation, reorganization,
or rearrangement or taking advantage of any bankruptcy, insolvency, debtor's
relief; or other similar law of the United States, the State of Texas, or any
other jurisdiction.
"Intangible Assets" of any Person means those assets of such Person
which are (i) deferred assets, other than prepaid insurance and prepaid taxes,
(ii) Intellectual Property, (iii) goodwill, experimental expenses and other
assets which would be classified as intangible assets on a balance sheet of such
Person, prepared in accordance with GAAP, (iv) unamortized debt discount and
expenses, and (v) costs in excess of fair value of the net assets acquired.
"Intellectual Property" means all patents, patent applications,
trademarks, trade names, franchise agreements, license agreements, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos, formulae, recipes, trade secrets, other source and
business identifiers, copyrights and the like.
"Investment" in any Person shall mean any stock, bond, note, or other
evidence of Debt, or any other security (other than current trade and customer
accounts) of; investment or partnership interest in or loan or advance to, such
Person.
"Lender" means Compass Bank, an Alabama state bank, and its successors
and assigns.
"L/C Exposure" shall mean, at any time, the aggregate maximum amount
available to be drawn under outstanding Letters of Credit at such time.
6
<PAGE> 11
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Letter of Credit Application" shall mean the standard letter of credit
application employed by the Lender from time to time in connection with letters
of credit.
"Letter of Credit Fee" shall mean each fee payable to the Lender by the
Borrowers m connection with the issuance of a Letter of Credit.
"Lien" means, as to any Person, any mortgage, lien, pledge, adverse
claim, charge, security interest, negative pledge or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other secured party to
or of the Person under any conditional sale or other title retention agreement
or capital lease with respect to, any property or asset of the Person, or the
signing or filing of a financing statement which names the Person as debtor, or
the signing of any security agreement authorizing any other Person as the
secured party thereunder to file any financing statement.
"Loan" means a loan made, deemed made in connection with the payment by
the Lender on any Letter of Credit or to be made by the Lender to the Borrowers
pursuant to this Agreement or the aggregate outstanding amount of all such
loans, as the context may require.
"Loan Documents" or "Loan Papers" shall mean this Agreement, the Note,
the Letter of Credit Applications, the Security Instruments, and all other
documents and instruments now or hereafter delivered pursuant to the terms of or
in connection with this Agreement, the Note, the Letter of Credit Applications,
or the Security Instruments, and all renewals and extensions of; amendments and
supplements to, and restatements of; any or all of the foregoing from time to
time in effect.
"Loan Papers". See Loan Documents.
"Material Adverse Effect" shall mean (i) any material adverse effect on
the business, operations, or properties of either Borrower, or (ii) any material
adverse effect upon the Collateral or the priority or enforceability of the
Liens securing the Note.
"Material Agreement" means, with respect to any Person, any material
written or oral agreement, contract, commitment or understanding to which such
Person is a party, by which such Person is directly or indirectly bound, or to
which any Property of such Person may be subject, which is not cancellable by
such Person upon notice of 90 days or less without (i) liability for further
payment other than nominal penalty or (ii) forfeiture of valuable Property.
"Margin Regulations" means Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"Mortgages" mean deeds of trust, mortgages, assignments of production,
security agreements, collateral mortgages, and acts of pledge in form and
substance acceptable to the Lender
7
<PAGE> 12
to be executed by the appropriate Person pursuant to which the Lender is granted
a first and prior Lien on the Collateral, subject only to Permitted Liens.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation system.
"Note" means the promissory note of the Borrowers (and any renewal or
extension thereof) evidencing the obligation of the Borrowers to repay the
Loans, substantially in the form attached hereto entitled "Form of Promissory
Note", with appropriate insertions, which Note is in renewal and replacement of
the Prior Note.
"Notice of Borrowing" has the meaning given such term in Section 2.2
and shall be substantially in the form of attached hereto entitled "Form of
Notice of Borrowing."
"Obligations" shall mean, without duplication, (i) all Debt evidenced
by the Note, (ii) the Reimbursement Obligations, (iii) the undrawn, unexpired
amount of all outstanding Letters of Credit, (iv) the obligation of the
Borrowers for the payment of the fees payable hereunder or under the other Loan
Documents, and (v) all other obligations and liabilities of either Borrower to
the Lender, now existing or hereafter incurred, under, arising out of or in
connection with any Loan Document, and to the extent that any of the foregoing
includes or refers to the payment of amounts deemed or constituting interest,
only so much thereof as shall have accrued, been earned and which remains unpaid
at each relevant time of determination.
"Officer's Certificate" means as to either Borrower, a certificate
signed by a Responsible Officer of such Borrower.
"Parent" has the meaning given such term in the Recitals to this
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Indebtedness means (i) the Obligations, (ii) unsecured
accounts payable incurred in the ordinary course of business, which are not
unpaid in excess of 120 days beyond the due date thereof or are being contested
in good faith and as to which such reserve as is required by GAAP has been made
and on which interest charges are not paid or accrued, (iii) accrued taxes and
unsecured accounts payable owed to insurance companies for insurance contracts
maintained by Borrower in its ordinary course of business, (iv) endorsements of
negotiable instruments in the ordinary course of business and (v) amounts owed
by one of the Borrowers to the other Borrower.
"Permitted Investments" means investments in (i) indebtedness,
evidenced by notes maturing not more than 180 days alter the date of issue,
issued or guaranteed by the government of the United States of America, (ii)
certificates of deposit maturing not more than 180 days after the date of issue,
issued by commercial banking institution each of which is a member of the
Federal Reserve System and which has combined capital and surplus and undivided
profits of not less than $50,000,000, (iii)
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commercial paper, maturing not more than 90 days after the date of issue, issued
by (a) the Lender (or any parent corporation of the Lender) or (b) a corporation
(other than an affiliate of either Borrower) with a rating of "P1" (or its then
equivalent) according to Moody's Investors Service, Inc., "A-l" (or its then
equivalent) according to Standard & Poor's Corporation or "F-l" (or its then
equivalent) according to Fitch's Investors Services, Inc. or (iv) such other
instruments, evidences of indebtedness or investment securities as the Lender
may approve or (v) indebtedness evidenced by that certain promissory note of the
Guarantor to the Parent dated December 15, 1998, in the amount of $7,100,000 so
long as the Lender has a first and prior perfected lien and security interest in
such note.
"Permitted Liens" means, with respect to any Property,
(a) Liens in favor of the Lender;
(b) the following, if the validity and amount thereof are being
contested in good faith and by appropriate legal proceedings and so long as (i)
levy and execution thereon have been stayed and continue to be stayed, (ii) they
do not in the aggregate materially detract from or threaten the value of the
asset, or materially impair the use thereof in the operation of either
Borrower's business, and (iii) a reserve therefor, if appropriate, has been
established: claims and Liens for Taxes due and payable; claims and Liens upon
and defects of title to real and personal property, including any attachment of
personal or real property or other legal process prior to adjudication of a
dispute on the merits; claims and Liens of mechanics, materialmen, warehousemen,
or carriers, or similar Liens; and adverse judgments on appeal;
(c) Liens for Taxes not past due;
(d) mechanics' and materialmen's Liens for services or materials for
which payment is not past due;
(e) operators' Liens incurred pursuant to operating agreements entered
into by either Borrower in the ordinary course of business which secure
obligations not past due; and
(f) Liens in favor of the lessor on the Property being leased under any
capital lease permitted hereunder.
"Permitted Loans and Investments" means (i) loans by either Borrower to
or the acquisition of Investments by either Borrower in any Person not exceeding
in the aggregate outstanding at any time for both Borrowers the amount of
$250,000 and not otherwise permitted under this Agreement and (ii) Permitted
Investments.
"Person" means a corporation, an association, a joint venture, an
organization, a business, an individual or a government or political subdivision
thereof or any governmental agency.
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"Plan" means, at any time, any employee benefit plan which is covered
by ERISA and in respect of which either Borrower or any Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prior Loan Agreement" has the meaning given such term in the Recitals
to this Agreement.
"Prior Note" has the meaning given such term in the Recitals to this
Agreement.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
"Reimbursement Obligation" means the obligation of either Borrower to
provide to the Lender or reimburse the Lender for any amounts payable, paid, or
incurred by the Lender with respect to Letters of Credit.
"Requirement of Law means, as to any Person, the certificate or
articles of incorporation and bylaws or other organizational or governing
documents of such Person, and any applicable law, treaty, ordinance, order,
judgment, rule, decree, regulation, or determination of an arbitrator, court, or
other Governmental Authority, including, without limitation, rules, regulations,
orders, and requirements for permits, licenses, registrations, approvals, or
authorizations, in each case as such now exist or may be hereafter amended and
are applicable to or binding upon such Person or any of its Property or to which
such Person or any of its Property is subject.
"Responsible Officer" means as to either Borrower, the President or any
Vice President of such Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Restricted Payment" means:
(a) the declaration or payment of any dividend on, or the incurrence of
any liability to make any other payment or distribution in respect of, any
shares of or other ownership interests in either Borrower;
(b) any payment or distribution on account of the purchase, redemption
or other retirement of any shares of or other ownership interests in either
Borrower, or of any warrant, option or other right to acquire such shares or
such other ownership interests, or any other payment or distribution made in
respect thereof, either directly or indirectly;
(c) the repayment by either Borrower of any Debt owed to an Affiliate
except repayments of Debts owed by one Borrower to the other Borrower; or
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(d) any loan or extension of credit by either Borrower to any Affiliate
except loans or extensions of credit by one Borrower to the other Borrower.
The amount of any Restricted Payment in Property shall be deemed to be the
greater of its fair market value or its net book value ("fair market value" will
be determined by an appraisal in form, and prepared by an appraiser, selected by
the Borrowers and acceptable to the Lender).
"Revolving Commitment" has the meaning given such term in Section 2.1.
"Revolving Credit Period" means the period commencing on the Closing
Date and ending at Final Maturity (the "Revolving Credit Termination Date").
"Revolving Credit Termination Date" has the meaning given such term in
the definition of "Revolving Credit Period."
"Security Document". See Security Instruments.
"Security Instruments" or "Security Document" means the security
instruments executed and delivered in satisfaction of the condition set forth in
Section 5.2(c), and all other documents and instruments at any time executed as
security for all or any portion of the Obligations, as such instruments may be
amended, restated, or supplemented from time to time.
"Subsidiary" means for any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned, collectively, by such
Person and any Subsidiaries of such Person. The term Subsidiary shall include
Subsidiaries of Subsidiaries (and so on).
"Taxes" means all taxes, assessments, filing or other fees, levies,
imposts, duties, deductions, withholdings, stamp taxes, interest equalization
taxes, capital transaction taxes, foreign exchange taxes or charges, or other
charges of any nature whatsoever from time to time or at any time imposed by any
law or Tribunal.
"Toreador Exploration" has the meaning given such term in the Recitals
to this Agreement.
"Transferee" means any Person to which the Lender has sold, assigned,
transferred, or granted a participation in any of the Obligations, as authorized
hereunder, and any Person acquiring, by purchase, assignment, transfer, or
participation, from any such purchaser, assignee, transferee, or participant,
any part of such Obligations.
"Tribunal" means any court, tribunal, governmental body, agency,
arbitration panel, or instrumentality.
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"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the State of Texas.
SECTION 1.2 Accounting Terms and Determinations: Changes in Accounting.
(a) Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the independent public accountants and with respect to which
either borrower shall have promptly notified the Lender on becoming aware
thereof) with the most recent financial statements of the Borrowers delivered to
the Lender.
(b) The Borrowers will not change its method of accounting, other than
immaterial changes in methods, changes permitted by GAAP in which the Borrowers'
independent public accountants concur and changes required by a change in GAAP,
without the prior written consent of the Lender.
SECTION 1.3 References in this Agreement to Exhibits, Schedules,
Annexes, Appendixes, Attachments, Articles, Sections or clauses shall be to
Exhibits, Schedules, Annexes, Appendixes, Attachments, Articles, Sections or
clauses of this Agreement, unless expressly stated to the contrary. References
in this Agreement to "hereby," "herein," "hereinafter," "hereinabove,"
"hereinbelow," "hereof," "hereunder" and words of similar import shall be to
this Agreement in its entirety and not only to the particular Exhibit, Schedule,
Annex, Appendix, Attachment, Article, or Section in which such reference
appears. This Agreement, for convenience only, has been divided into Articles
and Sections; and it is understood that the rights and other legal relations of
the parties hereto shall be determined from this instrument as an entirety and
without regard to the aforesaid division into Articles and Sections and without
regard to headings prefixed to such Articles or Sections. Whenever the context
requires, reference herein made to the single number shall be understood to
include the plural; and likewise, the plural shall be understood to include the
singular. Definitions of terms defined in the singular or plural shall be
equally applicable to the plural or singular, as the case may be, unless
otherwise indicated. Words denoting sex shall be construed to include the
masculine, feminine and neuter, when such construction is appropriate; and
specific enumeration shall not exclude the general but shall be construed as
cumulative. The Exhibits, Schedules, Annexes, Appendixes and Attachments
attached to this Agreement and items referenced as being attached to this
Agreement are incorporated herein and shall be considered a part of this
Agreement for all purposes.
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ARTICLE II
COMMITMENT TO LEND
SECTION 2.1 Commitment.
(a) During the Revolving Credit Period, the Lender agrees, subject to
the other terms and conditions of this Agreement;
(i) To lend to the Borrowers subject to clause (ii) below from
time to time amounts not to exceed in the aggregate at any one time outstanding
an amount equal to the Borrowing Base as in effect from time to time (the
"Revolving Commitment"). The Borrowers may borrow under this Section, repay
Loans and reborrow under this Section at any time during the Revolving Credit
Period. The amounts outstanding under the Prior Note shall be renewed and deemed
outstanding under the Note upon issuance of the Note, and upon issuance of the
Note, the Borrowers shall have no right to borrow under the Prior Note.
(ii) To issue letters of credit for the account of either
Borrower from time to time in amounts not to exceed the aggregate at any one
time outstanding for both Borrowers the lesser of the amount of $500,000 or the
unused Revolving Commitment, it being understood that outstanding funding
obligations under Letters of Credit shall reduce the unused Revolving Commitment
hereunder. Any letters of credit outstanding under the Prior Loan Agreement will
be deemed to be outstanding hereunder.
(b) The Lender shall not be obligated to lend to the Borrowers, and the
Borrowers shall not be entitled to borrow hereunder, any amount which would
cause the sum of the outstanding principal amount of all Loans made by the
Lender and the undrawn amount of all outstanding Letters of Credit to exceed the
Revolving Commitment of the Lender then in effect.
(c) The Lender shall not be obligated to issue a letter of credit
pursuant to Section 2.1(a) or to renew a Letter of Credit, and the Borrowers
shall not be entitled to have a letter of credit issued pursuant to such Section
or to have a Letter of Credit renewed, if the issuance of the requested letter
of credit or the renewal of an existing Letter of Credit would cause, alter
taking into account the mandatory reductions in the Borrowing Base required
during the proposed term of such requested letter of credit or existing Letter
of Credit, the undrawn amount of all Letters of Credit to ever exceed the
Revolving Commitment.
SECTION 2.2. Method of Borrowing and Obtaining Letters of Credit. (a)
Either Borrower shall give the Lender notice (a "Notice of Borrowing") prior to
12:00 noon (Dallas time) of the day of the requested Loan under Section 2.1 in
the form of Exhibit 2.2(a).
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(b) Unless the Lender determines that any applicable condition
specified in Article V or elsewhere herein has not been satisfied, the Lender
will make the funds available to the Borrowers at the Lender's address referred
to in Section 9.6.
(c) Either Borrower shall give the Lender a request for letter of
credit prior to 12:00 noon (Dallas time) at least three (3) Business Days before
each requested letter of credit under Section 2.1. by completing and delivering
a Letter of Credit Application. The expiry date of such requested letter of
credit cannot be later than the earlier of (A) one (1) year from the date of
issuance or (B) the last date before which the Borrowing Base is scheduled to
reduce to an amount less than the aggregate undrawn amount of the requested
letter of credit and the outstanding Letters of Credit which, by their terms,
might be outstanding on such reduction date or (c) the Revolving Credit
Termination Date The Letter of Credit Application must be completed in a manner
and shall use such wording as is acceptable to the Lender.
(d) Upon receipt of the Letter of Credit Application, the Lender shall
issue such letter of credit if the conditions of Article V or elsewhere herein
have been satisfied.
(e) Subject to the terms hereof, in the event that any beneficiary of a
Letter of Credit shall have taken the steps necessary to obligate the Lender to
make a payment under such Letter of Credit, the Borrowers shall be deemed to
have delivered to the Lender an irrevocable Notice of Borrowing under Section
2.2 for a Loan in the amount of such payment amount, regardless of any
limitations set forth herein. The Lender shall pay over the proceeds of such
Loan to itself as reimbursement for amounts paid under such Letter of Credit.
SECTION 2.3. Note. The Loans shall be evidenced by the Note issued by
the Borrowers, payable to the order of the Lender in the Commitment Amount. The
Note shall renew the indebtedness outstanding under the Prior Note.
SECTION 2.4. Certain Payments and Prepayments of Principal. (a) If at
any time the aggregate principal of the Loans outstanding and the undrawn amount
of the outstanding Letters of Credit: exceed the Borrowing Base then in effect,
the Borrowers shall within one (1) Business Days alter it becomes aware of such
occurrence, repay the principal of the Loans in an amount equal to such excess,
except that if the circumstances described in this Section are the direct result
of a new determination of the Borrowing Base under Section 2.8(a), then the
provisions of Section 2.8(c) shall apply.
(b) In the event that a prepayment is required under this Section or
Section 2.8(c) and the outstanding Loans are less than the amount required to be
prepaid, the Borrowers shall repay the entire Loan balance and, in accordance
with the provisions of the relevant Letter of Credit Application executed by
either Borrower or otherwise to the satisfaction of the Lender, deposit with the
Lender as additional collateral securing the Obligations, an amount of cash, in
immediately available funds, equal to the LIC Exposure minus the Borrowing Base.
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SECTION 2.5 Interest. (a) The unpaid principal balance of the Loans
shall bear interest, payable as it accrues on the 1st day of each month,
commencing May 1, 1999, and at maturity (stated or by acceleration), at a rate
per annum equal to the lesser of the (i) Highest Lawful Rate or (ii) the
Floating Rate.
(b) Each change in the rate of interest charged hereunder shall become
effective automatically and without notice to the Borrowers upon the effective
date of each change in the Floating Rate or the Highest Lawful Rate, as the case
may be.
SECTION 2.6 Commitment Engineering. Facility and Letter of Credit Fees.
Authorized Payments by Lender. (a) The Borrowers shall pay to the Lender a
commitment fee of three-eighths of one percent (% of 1%) per annum, calculated
daily on the actual number of days the Revolving Commitment is outstanding on
the amount of the unused portion of the Revolving Commitment in effect from time
to time, such commitment fee to be payable quarterly as it accrues on each
January 1, April 1, July 1, and October 1 and upon termination of the Revolving
Commitment.
(b) The Borrowers shall pay to the Lender an engineering fee in the
amount of $0.00 on the Closing Date and thereafter shall pay an engineering fee
in the amount of $5,000 if the Lender's internal engineers perform the
engineering review of the Collateral or the actual fees and expenses of any
third-party engineers retained by the Lender to prepare an engineering report,
payable at the time of the scheduled or Borrower requested determination of the
Borrowing Base referred to in Section 2.S(a).
(c) To compensate the Lender for the costs of the extension of credit
hereunder, the Borrower shall pay to the Lender upon each determination of an
increase in the Borrowing Base pursuant to Section 2.8(a), a facility fee in the
amount of one percent (1.00%) of the amount by which the Borrowing Base is
increased over that in effect on the date of such determination.
(d) The Borrowers shall pay to the Lender at the time of issuance of
each Letter of Credit (i) a letter of credit fee equal to the greater of (1)
seven-eighths of one percent (7/8 of 1.0 %) per annum of the face amount of such
Letter of Credit for the maximum number of days which such Letter of Credit, by
its terms could remain outstanding or (2) $350, and (ii) the normal and standard
charges of the Lender for the issuance, delivery and confirmation of such Letter
of Credit
(e) The Lender is irrevocably authorized to make Loans for the payment
of the fees and expenses of the Lender required to be paid by either Borrower
hereunder. The Lender shall pay over such Loan proceeds to itself or directly to
such other Person entitled to payment hereunder.
SECTION 2.7. Termination of Revolving Commitment (a) The Revolving
Commitment shall terminate no later than the Revolving Credit Termination Date,
and any Loans then outstanding (together with accrued interest thereon) shall be
due and payable in full on such date.
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(b) The Borrowers shall have the right upon payment in full of the
Obligations and the cancellation of all outstanding Letters of Credit,
to cancel in full (but not in part) the Revolving Commitment, with no
right of reinstatement.
SECTION 2.8. Determination of Borrowing Base: Automatic Reductions in
Borrowing Base: Borrowing Base Deficiency. (a) On the basis of the information
furnished to the Lender hereunder and such other reports, appraisals and
information as the Lender may deem appropriate, the Lender shall have the right
to determine a new Borrowing Base as of each July 1 and January 1 during the
Revolving Credit Period (the "scheduled determinations") commencing July I,
1999, or at such other or additional times during the Revolving Credit Period as
the Lender in its reasonable discretion and at its sole cost may elect (the
"discretionary determinations"), and the Lender shall determine a new Borrowing
Base at such additional times, but no more often than one (I) time in any
12-month period without the Lender's consent, as the Borrowers may request (the
"Borrower requested determinations'). Such determinations, if made, shall be in
accordance with the Lender's customary practices and standards for loans of a
similar nature as in effect at the time such determinations are made and shall
be conclusive, and any increases in the Borrowing Base shall be subject to the
Lender's complete credit approval process. Any new Borrowing Base determined
under this Section shall be effective immediately upon its communication to
either Borrower regardless of any Notice of Borrowing tile Lender might have
received.
(b) The Borrowing Base shall be automatically reduced as of the 1st day
of each month commencing May 1, 1999, and continuing throughout the Revolving
Credit Period. The monthly reduction shall be in the amount of $40,000 per month
until redetermined hereunder. At the time of each new Borrowing Base
determination under Section 2.8(a) the Lender in its sole discretion may
increase or decrease the amount of such monthly reduction and any decreases in
the monthly reduction shall be subject to the Lender's complete credit approval
process.
(c) Upon the occurrence of a Borrowing Base Deficiency, the Borrowers
shall, within thirty (30) days following notice by the Lender of the existence
of such Borrowing Base Deficiency, do any one or more of the following in an
aggregate amount at least equal to such Borrowing Base Deficiency: (i) prepay
the principal of the outstanding Loans or (ii) cause to be created first and
prior perfected Liens (subject only to Permitted Liens) in favor of the Lender,
by instruments satisfactory to the Lender, on producing oil and gas properties
(or cash if the circumstances described in Section 2.4(1,) are applicable) which
in tile opinion of the Lender would increase the Borrowing Base by an amount
sufficient, in combination with clause (i) preceding, to eliminate such
Borrowing Base Deficiency.
(d) Upon each redetermination of the Borrowing Base, the Lender may
notify an officer of either Borrower orally (confirming such notice promptly in
writing) of such determination, and the Borrowing Base and the amount by which
the Borrowing Base shall be reduced so communicated shall borne effective upon
such oral notification and shall remain in effect until the next redetermination
of the Borrowing Base.
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(e) Either Borrower may at any time by written notice to the Lender
request that the Borrowing Base be reduced (with no right of reinstatement) by
an amount specified by such Borrower in such reduction notice, and the Borrowing
Base shall be deemed so reduced upon receipt by the Lender of such reduction
notice. Further, in the event the Borrowers are advised of any increase in the
Borrowing Base, either Borrower may decline to utilize the increased borrowing
availability created thereby and by written notice to the Lender irrevocably
refuse to accept all or a portion of such increase, but any such refusal notice
received by the Lender more than one(l) Business Day following such increase in
the Borrowing Base shall be treated as a Borrowing Base reduction notice under
the immediately preceding sentence.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.1 General Provisions as to Payments and Loans.
(a) All payments of principal and interest on the Loans and of fees
hereunder shall be made by 12:00 noon (Dallas, Texas time) on the date such
payments are due in federal or other funds immediately available at the
principal office of the Lender referred to in Section 9.6, and, if not made by
such time or in immediately available fluids, then such payment shall be deemed
made when such fluids are available to the Lender for its full and unrestricted
use. Whenever any payment of principal of or interest on the Loans or of fees
hereunder shall be due on a day which is not a Business Day, the date for
payment thereof shall be extended to the next succeeding Business Day. If the
date for any payment is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
All payments made by the Borrowers on the Loans shall be made
free and clear of; and without reduction by reason of; any Taxes.
(c) All requests for Loans shall be made on a Business Day.
(d) All Loans shall be made available to the Borrowers on a Business
Day at the Lender's address referred to in Section 9.6.
(e) All payments and fundings shall be denominated in United States of
America dollars.
SECTION 3.2. Computation of Interest. Each determination of interest
and fees hereunder shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the firs: day but excluding the
last day), subject to the limitations of the Highest Lawful Rate.
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SECTION 3.3. Overdue Principal and Interest. Unless waived by the
Lender, any overdue principal and, to the extent permitted by law, overdue
interest on the Loans shall bear interest at the Default Rate.
ARTICLE IV
COLLATERAL
SECTION 4.1. Security
(a) To secure full and complete payment and performance of the
obligations of the Borrowers to the Lender, the Borrowers will cause the
appropriate Person to execute and deliver to the Lender the following documents
and instruments:
(i) the Mortgages from the Borrowers granting the Lender a
first and prior Lien on the oil and gas Properties of each Borrower as
designated by the Lender, together with financing statements relating
thereto, subject only to Permitted Liens; and
(ii) the Guaranty of the Guarantor.
(b) All documents delivered or to be delivered hereunder shall be in
form and substance reasonably satisfactory to the Lender and its counsel and
shall be supported by such legal opinions as the Lender or its counsel may
reasonably request
(c) All Liens to be created by delivery of the documents referred to in
this Section shall be first and prior perfected Liens in favor of the Lender,
subject only to Permitted Liens.
(d) The Borrowers and the Guarantor have executed mortgages, deeds of
trust, pledges, assignments, guarantees and other security documents in favor of
the Lender in connection with credit facilities provided by the Lender to the
Guarantor, and it is intended that all such documents secure the respective
obligations of the Borrowers and the Guarantor to the Lender incurred pursuant
hereto.
ARTICLE V
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
The obligation of the Lender to make Loans or issue Letters of Credit
hereunder shall be subject to the satisfaction of each of the following
conditions:
SECTION 5.1. All Loans and Letters of Credit. In the case of each Loan
or Letter of Credit issued hereunder (except the initial Loan issued hereunder):
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(a) timely receipt by the Lender of a Notice of Borrowing or Letter of
Credit Application;
(b) the fact that, immediately before such requested Loan or Letter of
Credit, no Default shall have occurred and be continuing and that the making of
any such Loan will not cause a Default; and
(c) the fact that the representations and warranties of each Borrower
contained in this Agreement (except the representations set forth in Sections
6.7 and 6.10(a)) shall be true on and as of the date of such Loan.
Each request for a Loan hereunder shall be deemed to be a
representation and warranty by each Borrower on the date of such request, as to
the facts specified in clauses (1,) and M immediately preceding.
SECTION 5.2 Initial Loan. In the case of the initial Loan:
(a) Receipt by the Lender of the following:
(i) copies of the Articles or Certificates of Incorporation
(or Articles of Organization or similar documents), and all amendments thereto,
of each Borrower and the Guarantor, accompanied by certificates that such copies
are correct and complete, one issued by the Secretary of State of the state of
incorporation or formation of such Borrower and the Guarantor, dated a current
date, and one executed by the President or a Vice President and the Secretary or
an Assistant Secretary (or other authorized representatives) of such Borrower
and the Guarantor, dated the Closing Date;
(ii) copies of the Bylaws (or Regulations or similar
documents) , and all amendments thereto, of each Borrower and the Guarantor,
accompanied by certificates that such copies are correct and complete of the
President or a Vice President and the Secretary or an Assistant Secretary (or
other authorized representatives) of such Borrower and the Guarantor, dated the
Closing Date;
(iii) certificates of the appropriate Tribunals of each
jurisdiction in which either Borrower has an executive office or principal place
of business, either Borrower or the Guarantor was formed or in which any
Collateral is located (if such Borrower or the Guarantor is required to
qualified to do business in such state), each dated a current date, to the
effect that such Borrower or the Guarantor, as applicable, is in good standing
with respect to the payment of Franchise and/or other Taxes and, if required by
law, are duly qualified to transact business in such jurisdictions, accompanied
by the certificate of the President or a Vice President and the Secretary or an
Assistant Secretary (or other authorized representatives) of such Borrower or
the Guarantor, as applicable, that such Tribunal certificates are true and
correct as of the Closing Date;
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(iv) certificates of incumbencies and signatures of all
officers of each Borrower and the Guarantor who will be authorized to execute or
attest any of the Loan Papers on behalf of either Borrower and the Guarantor,
executed by the President or a Vice President and the Secretary or an Assistant
Secretary (or other authorized representatives) of such Borrower or the
Guarantor, as applicable, dated the Closing Date;
(v) copies of resolutions approving the Loan Papers and
authorizing the transactions contemplated therein, duly adopted by the Board of
Directors (or authorized body serving a similar function) of each Borrower, and
the Guarantor, accompanied by certificates of the Secretary or an Assistant
Secretary (or other authorized representative) of such Borrower or the
Guarantor, as applicable, that such copies are true and correct copies of
resolutions duly adopted at the meeting of; or by the unanimous written consent
of; the Board of Directors (or authorized body serving a similar function) of
such Borrower or the Guarantor, as applicable, and that such resolutions
constitute all the resolutions adopted with respect to such transactions, have
not been amended, modified or revoked in any respect, and are in full force and
effect as of the Closing Date;
(b) receipt by the Lender of the duly executed Note in the Commitment
Amount, dated the Closing Date;
(c) receipt by the Lender of the documents described in Section 41 (a)
each duly executed and delivered by the appropriate Person;
(d) receipt by the Lender of a due diligence report of counsel in the
form and from attorneys acceptable to the Lender, covering the oil and gas
Properties of each Borrower and the Guarantor and such other documentation and
information required by the Lender to satisfy the Lender of the status of the
tide of the Collateral;
(e) receipt by the Lender of a Certificate of Ownership Interests in
the form attached hereto, certifying as to each Borrower's ownership interest in
its oil and gas Properties and a similar form of Certificate of Ownership,
certifying as to the Guarantor's ownership interest in its oil and gas
Properties;
(f) receipt by the Lender of a certificate from the President or a Vice
President and the Secretary or an Assistant Secretary (or other authorized
representatives) of each Borrower certifying as to the truth and correctness of
each representation and warranty contained in Article VI hereof as of the
Closing Date;
(g) receipt by the Lender of satisfactory evidence that prior Liens, if
any, on the Collateral are being released concurrently with the Closing;
(h) receipt by the Lender of the opinions of counsel to the Borrowers
in form and substance satisfactory to the Lender and its counsel; and
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(i) receipt by the Lender of such additional information and
documentation as the Lender may reasonably require relating to the Loan Papers
(and all renewals, extensions, amendments, restatements and modifications of the
same) and the transactions contemplated hereby and thereby
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
Each Borrower hereby represents and warrants to the Lender as follows:
SECTION 6.1 Existence and Power. Each of the Borrowers and the
Guarantor:
(a) is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware (or with respect to Toreador
Exploration, the State of Texas);
(b) has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted;
(c) is duly qualified to transact business as a foreign entity in each
jurisdiction where the nature of its business requires the same, except where
the failure to so qualify could not reasonably be expected to have a material
adverse effect on its business or financial condition; and
(d) owns, both beneficially and of record, all of its assets reflected
in its financial statements delivered to the Lender.
SECTION 6.2 Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by each Person (other than the Lender)
purporting to execute the same of this Agreement or the other Loan Papers are
within such Person's power, have been duly authorized by all necessary action,
require no action by or in respect of; or filing with, any governmental body,
agency or official (except that the perfection of Liens created by certain of
the Security Documents may require the filing of financing statements, mortgages
or similar instruments in the appropriate recordation offices), and do not
contravene, or constitute a default under, any provision of applicable law or
regulation (including, without limitation, the Margin Regulations) or any
agreement creating or governing such Person or any agreement, judgment,
injunction, order, decree or other instrument binding upon such Person or result
in the creation or imposition of any Lien on any Property of either Borrower,
except Liens securing the Obligations.
SECTION 6.3 Binding Effect. (a) This Agreement constitutes a valid and
binding agreement of the Borrower; the Note, when executed and delivered in
accordance with this Agreement, will constitute the valid and binding obligation
of each Borrower; the Security
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Documents, when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of each Person purporting to execute
the same;
(b) Each Loan Paper is enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors, rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
SECTION 6.4 Subsidiaries: Ownership. (a) The Parent has no Subsidiaries
other than Toreador Exploration and the Guarantor.
(b) At least 100% of all equity interests in Toreador Exploration and
the Guarantor are owned legally and beneficially by the Parent
SECTION 6.5 Disclosure. No document, certificate or statement delivered
to the Lender by or on behalf of either Borrower in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact. All information heretofore furnished by either Borrower to the Lender for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by either Borrower to
the Lender will be, true and accurate in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. Each Borrower has disclosed to the Lender in writing any and all
facts (except facts of general public knowledge) which materially and adversely
affect or may affect (to the extent such Borrower can now reasonably foresee)
the business, operations, prospects or condition, financial or otherwise, of
such Borrower or the ability of such Borrower to perform its obligations under
this Agreement
SECTION 6.6 Financial Information.
(a) The financial information of the Borrowers delivered to the Lender
in connection with the request for this credit facility fairly present, in
conformity with GAAP, the financial position of the Borrowers.
(b) Except as disclosed in writing by the Borrowers to the Lender prior
to the execution and delivery of this Agreement, since the dates referenced the
financial information referred to in Section 6.6(a) above, there has been no
material adverse change in the business, financial position, results of
operations or prospects of either Borrower.
(c) White Heron Travel Service, Inc., a Texas corporation, is a
wholly-owned subsidiary of the Borrower and as of the Closing Date has no
long-term Debt.
SECTION 6.7 Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of either Borrower threatened against or affecting
either Borrower before any Tribunal or arbitrator in which there is a reasonable
possibility of an adverse decision which could materially
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and adversely affect the business, financial position or results of operations
of either Borrower, or which could in any manner draw into question the validity
of this Agreement or any other Loan Papers.
SECTION 6.8 Plans. Neither Borrower has any Plans.
SECTION 6.9 Taxes and Filing of Tax Returns. Each Borrower has filed or
properly extended all returns required to have been filed or extended with
respect to Taxes and has paid all Taxes shown to be due and payable by it on
such returns, including interest and penalties, and all other Taxes which are
payable by it, to the extent the same have become due and payable (unless, with
respect to such other Taxes, the criteria set forth in Section 7.5 are being
met). Neither Borrower knows of any proposed assessment of Taxes of a material
amount against it and all liabilities for Taxes of each Borrower are adequately
provided for.
SECTION 6.10 Title to Properties; Liens; Environmental Liability. (a)
Each of the Borrowers and the Guarantor has good and indefeasible title to all
Property purported to be owned by it (except for Permitted Liens, minor defects
in tide and minor encumbrances not in any case materially detracting from the
value of the assets affected thereby). All Property of each Borrower and the
Guarantor is free and clear of all Liens other than Permitted Liens. Upon the
recordation of the Security Documents in the appropriate recordation offices,
the Liens covering the Collateral will be valid, enforceable, first and prior,
perfected Liens in favor of the Lender, except for Permitted Liens.
(a) Neither Borrower has (i) received notice or otherwise learned of
any Environmental Liability which could individually or in the aggregate have a
Material Adverse Effect arising in connection with (A) any non-compliance with
or violation of the requirements of any Environmental Law or (B) the release or
threatened release of any toxic or hazardous waste, substance or constituent, or
other substance into the environment, or (ji) received notice or otherwise
learned of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release or threatened release of any toxic or
hazardous waste, substance or constituent into the environment for which either
Borrower is or may be liable which would individually or in the aggregate have a
Material Adverse Effect.
SECTION 6.11 Business: Compliance. The Borrower has performed and
abided by all obligations required to be performed by it to the extent it could
be materially and adversely affected under any license, permit, order,
authorization, grant, contract, agreement, or regulation to which it is a party
or by which it or any of its Property is bound.
SECTION 6.12 Licenses. Permits. Etc. Each Borrower possesses such valid
franchises, certificates of convenience and necessity, operating rights,
licenses, permits, consents, authorizations, exemptions and orders of Tribunals
as are necessary to carry on its business as now being conducted and to own its
properties.
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SECTION 6.13 Compliance with Law. The business and operations of each
Borrower have been and are being conducted in accordance with all applicable
laws, rules and regulations of all Tribunals, other than violations which could
not (either individually or collectively) have a Material Adverse Effect.
SECTION 6.14 Governmental Consent. No consent, approval or
authorization of, or declaration or filing with, any governmental authority is
required for the valid execution, delivery and performance of this Agreement or
any other Loan Papers.
SECTION 6.15 Investment Company Act. Neither Borrower is an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 6.16 Public Utility Holding Company Act: State Utility. (a)
Neither Borrower is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company," or of a "subsidiary company"
of a "holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
(1,) Neither Borrower is defined as a "utility" under the laws of the
State of Texas or any other jurisdiction wherein either Borrower is required to
qualify to do business.
SECTION 6.17. Year 2000 Preparedness. Each Borrower has (i) initiated a
review and assessment of all areas within its business and operations (including
those affected by suppliers, vendors and customers) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by such Borrower (or its suppliers, vendors and customers) may
be unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that timetable. Based on
the foregoing, each Borrower believes that all computer applications (including
those of its suppliers, vendors and customers) that are material to its business
and operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and alter January 1,2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
SECTION 6.18 Refunds; Certain Contracts. (a) No orders of, proceedings
pending before, or other requirements of, the Federal Energy Regulatory
Commission, the Texas Railroad Commission, or any Governmental Authority exist
which could result in either Borrower being required to refund any material
portion of the proceeds received or to be received from the sale of hydrocarbons
constituting part of the Collateral.
(b) Neither Borrower (i) is obligated in any material respect by virtue
of any prepayment made under any contract containing a "take-or-pay" or
"prepayment" provision or under any similar agreement to deliver hydrocarbons
produced from or allocated to any of the Collateral at some
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future date without receiving full payment therefor within 90 days of delivery,
and (ii) has not produced gas, in any material amount, subject to, and neither
Borrower nor any of the Collateral is subject to, balancing rights of third
parties or subject to balancing duties under governmental requirements
SECTION 6.19 No Default. No Default has occurred which is continuing as
of the Closing Date.
ARTICLE VII
COVENANTS
During the Revolving Credit Period, and thereafter so long as any
principal of or interest on the Note shall remain unpaid or any Letter of Credit
remains outstanding, each Borrower will duly perform and observe each and all of
the covenants and agreements hereinafter set forth:
SECTION 7.1 Use of Proceeds and Letters of Credit (a) The Borrowers
will use the proceeds of the Loans solely to finance the acquisition of oil and
gas Properties, to develop its oil and gas Properties and for other general
corporate purposes. The indebtedness evidenced by the Prior Note and being
renewed by the Note shall be deemed a Loan under the Note.
(b) Letters of Credit shall be used for the support of oil and gas
operations; provided, however, no Letter of credit may be used in lieu or in
support of stay of appeal bonds.
(c) Neither Borrower will, directly or indirectly, use any of the
proceeds of the Loans for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 C. F. IL 221, as amended), or any "security that is
publicly-held" within the meaning of Regulation T of such Board of Governors (12
C.F~R 220, as amended), or otherwise take or permit any action which would
involve a violation of such Regulation U, Regulation T or Regulation X (12 C.F.~
224, as amended) or any other regulation of such Board of Governors. The Loans
are not secured, directly or indirectly, in whole or in part, by collateral that
includes any "margin stock" within the meaning of Regulation U. Neither Borrower
will not engage principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying any
"margin stock" within the meaning of such Regulation U.
SECTION 7.2 Financial Statements: Reserve Reports; Compliance
Certificates: Certain Notices. The Borrowers will furnish to the Lender:
(a) (i) as soon as available and in any event within 105 days after the
end of each fiscal year of the Parent, the annual report of the Parent and its
Subsidiaries filed with the Commission on Form 10-K for such year together with
the consolidating schedules utilized in preparing the financial statements
included therein;
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(ii) as soon as available and in any event within 65 days
after the end of each of the first three quarters of each fiscal year of the
Parent, the quarterly report of the Parent and its Subsidiaries filed with the
Commission on Form 10-Q for such quarter together with the consolidating
schedules utilized in preparing the financial statements included therein;
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (i and (ii) proceeding, a
Certificate of the chief financial officer or the chief accounting officer of
the Parent, (i) setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the requirements of
Section 7.15 on the date of such financial statements, (ii) stating whether
there exists on the date of such certificate any Default and, if any Default
then exists, setting forth the details thereof and the action which the
Borrowers are taking or proposes to take with respect thereto and (iii) stating
whether or not such financial statements fairly reflect tile business and
financial condition of the Parent and its consolidated Subsidiaries as of the
date of the delivery of such financial statements;
(iv) concurrently with the delivery of each set of financial
statements referred to a statement of the firm of independent public accountants
which reported on such statements whether anything has come to their attention
to cause them to believe that there existed on the date of such statements any
Default.
(b) (i) as soon as available, and in any event on or before March 31 of
each year during the term of this Agreement, engineering reports in form and
substance satisfactory to the Lender in its reasonable judgment, certified by
any nationally - or regionally - recognized independent consulting petroleum
engineers selected by the Borrowers and acceptable to the Lender as fairly and
accurately setting forth (i) the proven and producing, shut-in, behind-pipe, and
undeveloped oil and gas reserves (separately classified as such) attributable to
the oil and gas Properties of the Borrowers and tile Guarantor as of January 1
of such year, (ii) the aggregate present value of the future net income with
respect to such Properties, discounted at a stated per annum discount rate of
proven and producing reserves, (iii) projections of the annual rate of
production, gross income, and net income with respect to such proven and
producing reserves, and (iv) information with respect to tile "take-or-pay,"
"prepayment," and gas-balancing liabilities of the Borrowers and the Guarantor;
(ii) within 60 days following each January 1 and July 1,
production reports m form and substance satisfactory to the Lender in its
reasonable judgment, prepared by the Borrowers containing data concerning
pricing, quantities of production from the oil and gas Properties of the
Borrowers and the Guarantor, volumes of production sold, purchasers of
production, gross revenues, expenses, production taxes, and such other
information with respect thereto as the Lender may reasonably request for use by
tile Lender to prepare for its own exclusive use, internally generated
engineering reports;
(iii) simultaneously with the delivery of such engineering and
production reports, an Officer's Certificate from the Parent stating that such
engineering and production report fairly
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and accurately reflects the production, the joint interest billings and the
operating cash flow for the oil and gas Properties of the Borrowers and the
Guarantor for the periods covered in such report; and
(c) (i) immediately alter any Responsible Officer of either Borrower
becomes aware of the occurrence of any condition or event which constitutes a
Default, an Officer's Certificate specifying the nature of such condition or
event, the period of existence thereof; what action the Borrowers have taken or
is taking and proposes to take with respect thereto and the date, if any, on
which it is estimated the same will be remedied;
(ii) if and when either Borrower (A) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (13) receives notice of complete or partial withdrawal liability under
Title IV of ERISA, a copy of such notice; or (C) receives notice from the PBGC
under Title W of ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice;
(iii) promptly after the delivery of the same to any lender of
any report required to be delivered pursuant to any debt instrument to which
either Borrower is a party and not otherwise required to be delivered hereunder,
a copy of such report,
(iv) promptly upon either Borrower's learning that it has
received notice or otherwise learned of any claim, demand, action, event,
condition, report or investigation indicating any potential or actual liability
arising in connection with (i) the non-compliance with or violation of the
requirements of any Environmental Law, (ii) the release or threatened release of
any toxic or hazardous waste, substance or constituent into the environment, or
(iii) the existence of any Environmental Lien on any Properties of either
Borrower, notice thereof;
(v) promptly upon either Borrower's learning of any litigation
or other event or circumstance which could have a Material Adverse Effect,
notice thereof;
(vi) the change in identity or address of any Person remitting
to the Borrowers proceeds from the sale of hydrocarbon production from or
attributable to any Collateral; and
(vii) any Change of Control Event.
(d) with reasonable promptness, such other information relating
directly or indirectly to the financial condition, business or Properties of
either Borrower or the Guarantor as from time to time may reasonably be
requested by the Lender.
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SECTION 7.3 Inspection of Properties and Books. The Borrowers will
permit, and will cause Guarantor to permit any officer, employee or agent of the
Lender to visit and inspect any of the Properties of either Borrower or the
Guarantor, to examine its books of account (and to make copies thereof and take
extracts therefrom) and to discuss its affairs, finances and accounts (including
transactions, agreements and other relations with any shareholders) with, and to
be advised as to the same by, its officers and independent public accountants,
all at such reasonable times and intervals as the Lender may desire and, if a
Default has occurred and is continuing, at the expense of the Borrowers.
SECTION 7.4 Maintenance of Security Insurance; Operating Accounts;
Transfer Orders. (a) The Borrowers shall execute and deliver, or cause the
appropriate Person to execute and deliver, to the Lender all mortgages, deeds of
trust, security agreements, financing statements, assignments and such other
documents and instruments (including division and transfer orders), and
supplements and amendments thereto, and take such other actions as the Lender
deems necessary or desirable in order to (i) maintain as valid, enforceable,
first-priority, perfected Liens (subject only to the Permitted Liens), all Liens
granted to the Lender to secure the Note or (ii) monitor or control the proceeds
therefrom.
(b) The Borrowers will and will cause the Guarantor to at all times
maintain or cause to be maintained insurance covering such risks as are
customarily carried by businesses similarly situated.
(c) The Borrowers will and will cause the Guarantor to maintain its
primary operating accounts with the Lender, although such requirement shall not
be construed a requiring the Borrowers to maintain deposit balances with the
Lender.
(d) Upon request of the Lender, the Borrowers shall and will cause the
Guarantor to execute such transfer orders, letters-in-lieu of transfer orders or
division orders as the Lender may from time to time request in respect of the
Collateral to effect a transfer and delivery to the Lender of the proceeds of
production attributable to the Collateral.
SECTION 7.5 Payment of Taxes and Claims. The Borrowers will and will
cause the Guarantor to pay (a) all Taxes imposed upon it or any of its assets or
with respect to any of its franchises, business, income or profits before any
material penalty or interest accrues thereon and (b) all material claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which have or might
become a Lien (other than a Permitted Lien) on any of its assets; provided,
however, that no payment of such Taxes or claims shall be required if (i) the
amount, applicability or validity thereof is currently being contested in good
faith by appropriate action promptly initiated and diligently conducted, (ii)
the Borrower or the Guarantor, as applicable, shall have set aside on its books
reserves (segregated to the extent required by GAAP) reasonably deemed by it to
be adequate with respect thereto, and (iii) the Borrower has notified the Lender
of such circumstances, in detail satisfactory to the Lender.
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SECTION 7.6 Payment of Debt Additional Debt. (a)The Borrowers will (i)
pay, renew or extend or cause to be paid, renewed or extended the principal of,
and the prepayment charge, if any, and interest on all Debt heretofore or
hereafter incurred or assumed by it when and as the same shall become due and
payable; (ii) faithfully perform, observe and discharge all unwaived covenants,
conditions and obligations imposed on it by any instrument evidencing such Debt
or by any indenture or other agreement securing such Debt or pursuant to which
such Debt is issued; and (iii) not permit the occurrence of any act or omission
which would constitute a default under any such instrument, indenture or
agreement.
(b) The Borrowers will not and will not permit the Guarantor to create,
incur or suffer to exist any Debt, except without duplication (a) Debt to the
Lender, (1)) Permitted Indebtedness and (c) indebtedness of the Guarantor to the
Parent existing on the date hereof.
SECTION 7.7 Liens. The Borrowers will not and will not permit the
Guarantor to create, suffer to exist or otherwise allow any Liens to be on or
otherwise to affect any of its oil and gas Properties whether now owned or
hereafter acquired, except Permitted Liens.
SECTION 7.8 Loans and Advances to Others: Investments: Restricted
Payments. (a) The Borrowers will not and will not permit the Guarantor to make
or suffer to exist any loan, advance or extension of credit to any Person except
(i) current trade and customer accounts receivable which are for goods furnished
or services rendered in the ordinary course of business and which are payable in
accordance with customary trade terms and (ii) Permitted Loans and Investments.
(b) the Borrowers will not and will not permit the Guarantor to make
any capital contribution to or to acquire any Investment in, or to purchase or
make a commitment to purchase any interest in, any Person except as set forth in
clause (a) above.
(c) The Borrowers will not, directly or indirectly, make any Restricted
Payment without the prior written consent of the Lender, except if no Default
exists and the making thereof will not cause a Default, cash dividends by the
Borrowers.
(d) The Borrower shall not form or acquire any Subsidiaries without the
prior written consent of the Lender and the amendment of this Agreement.
SECTION 7.9 Consolidation Merger Maintenance Change of Control;
Disposition of Property; Restrictive Agreements; Hedging Agreements. (a) The
Borrowers will not and will not permit the Guarantor to: (i) consolidate or
merge with or into any other Person (unless the Parent is the surviving entity
and no Default has occurred and is continuing or will result from such merger or
consolidation) without the prior written consent of the Lender, (ii) sell, lease
or otherwise transfer all or substantially all of its Property to any other
Person, (iii) terminate, or fail to maintain, its existence as a corporation in
its state of incorporation represented in Section 6.1(a) or (iv) terminate, or
fail to maintain, its good standing and qualification to transact business in
all jurisdictions where the nature of its business requires the same (except
where the failure to maintain its good standing
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or qualification could not reasonably be expected to have a material adverse
effect on its business or financial condition) or (v) permit a Change of Control
Event to occur
(b) The Borrowers will not and will not permit the Guarantor to sell,
encumber, or otherwise transfer all or any portion of the Collateral or any of
its other oil and gas Properties without the consent of the Lender, except for
(i) sales of oil and gas after severance in the ordinary course of business
provided that no contract for the sale of hydrocarbons shall obligate either
Borrower or the Guarantor to deliver hydrocarbons produced from any of the
Collateral at some future date without receiving full payment therefor within 90
days of delivery, (ii) the sale or other disposition of its personal Property
destroyed, worn out, damaged, or having only salvage value or no longer used or
useful in the oil and gas exploration and development business of the Borrowers
or the Guarantor, or (iii) undeveloped leasehold acreage not constituting
Collateral Any consent by the Lender to the sale of Collateral or other Property
of either Borrower or the Guarantor may include a requirement that a new
Borrowing Base be determined under Section 2.8(a) and that the proceeds of such
sale plus such additional amounts as the Lender deems necessary to avoid the
occurrence of a Borrowing Base Deficiency be applied to the Obligations. In this
connection, the Lender will not unreasonably withhold its consent to sales
during any 12-month period of Property of the Borrowers and the Guarantor, in
the aggregate, having Collateral Value of up to 20% of all Property of the
Borrowers and the Guarantor having Collateral Value.
(c) Neither the Borrowers nor the Guarantor will be or become party to
or bound by any agreement (including, without limitation, any undertaking in
connection with the incurrence of Debt or issuance of securities) which imposes
any limitation on the disposition of the Collateral more restrictive than those
set forth above or which in any way would be contravened by either Borrower's
performance of its obligations hereunder or under the other Loan Papers or which
contains any negative pledge on all or any portion of either Borrower's or
Guarantor's Property (except in favor of the Lender).
(d) The Borrowers will not and will not permit the Guarantor to enter
into any Hedging Agreement, other than Acceptable Hedging Agreements.
SECTION 7.10 Primary Business; Location of Each Borrower's Office;
Ownership of Assets. (a) The primary business of each Borrower and the Guarantor
shall be and remain the oil and gas exploration, development and production
business.
(b) The location of each Borrower's principal place of business and
executive office shall remain at the address for such Borrower set forth on the
signature page hereof, unless at least 10 days prior to any change in such
address such Borrower provides the Lender with written notice of such pending
change.
(c) Each Borrower will at all time own, both beneficially and of
record, all assets reflected in its financial statements delivered to the Lender
from time to time.
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SECTION 7.11 Operation of Properties and Equipment; Changes to Certain
Contracts. (a) Each Borrower shall and will cause the Guarantor to maintain,
develop and operate its oil and gas properties in a good and workmanlike manner
and will observe and comply with all of the terms and provisions, express or
implied, of all oil and gas leases relating to such properties so long as such
oil and gas leases are capable of producing hydrocarbons in commercial
quantities, to the extent that the failure to so observe and comply could have a
Material Adverse Effect.
(b) Each Borrower shall and will cause the Guarantor to remain as the
named operator for each well comprising the Collateral if it is the operator
thereof at the time such Collateral is subjected to the Lien of the Mortgage.
(c) Each Borrower shall and will cause the Guarantor to comply in all
material respects with all agreements applicable to or relating to its oil and
gas Properties or the production and sale of hydrocarbons therefrom and all
applicable proration and conservation laws of the jurisdictions in which such
properties are located, to the extent that the failure to so comply with such
laws or agreements could expose either Borrower to any material penalty or
forfeiture.
(d) The Borrowers shall and will cause the Guarantor to at all times,
maintain, preserve and keep all of its operating equipment used or useful with
respect to its oil and gas Properties in proper repair, working order and
condition, and make all necessary or appropriate repairs, renewals,
replacements, additions and improvements thereto so that the efficiency of such
operating equipment shall at all times be properly preserved and maintained,
provided that no item of operating equipment need be so repaired, renewed,
replaced, added to or improved, if the Borrowers or Guarantor shall in good
faith determine that such action is not necessary or desirable for the continued
efficient and profitable operation of the business of the Borrowers or the
Guarantor, as applicable.
(e) With respect to the oil and gas Properties referred to in this
Section which are operated by operators other than the Borrowers or the
Guarantor; the Borrowers and the Guarantor shall not be obligated itself to
perform any undertakings contemplated by the covenants and agreements contained
in this Section which are performable only by such operators and are beyond the
control of the Borrowers or the Guarantor, but the Borrowers shall use its best
efforts to cause such operators to perform such undertakings.
(f) The Borrowers will not and will not permit the Guarantor to amend,
alter or change in any material respect which could reasonably be expected to be
adverse to the interests of the Borrowers, the Guarantor or the Lender any
agreements relating to either Borrower's or Guarantor's operations or business
arrangements or the compression, gathering, sale or transportation of oil and
gas without the prior written consent of the Lender, which consent shall not be
unreasonably withheld.
SECTION 7.12 Transactions with Affiliates. The Borrowers will not and
will not permit the Guarantor to engage in any transaction with an Affiliate
unless (i) such transaction is at least as
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favorable to the Borrowers or Guarantor, as applicable, as could be obtained in
an arm's length transaction with an unaffiliated third party, (ii) such
transaction is not disadvantageous to the Lender as holder of the Note and (iii)
the Lender is advised in writing of the terms of such transaction prior to the
consummation thereof
SECTION 7.13 Plans. The Borrowers will not assume or otherwise become
subject to an obligation to contribute to or maintain any Plan or acquire any
Person which has at any time had an obligation to contribute to or maintain any
Plan.
SECTION 7.14 Compliance with Laws and Documents. The Borrowers will
not, directly or indirectly, violate the provisions of any laws, its certificate
of incorporation (or similar organizational documents) or bylaws (or similar
regulatory documents) or any Material Agreement, if such violation, alone or
when combined with all other such violations, could have a Material Adverse
Effect.
SECTION 7.15 Certain Financial Covenants.
(a) Cash Flow to Debt Service Ratio. Until the condition set forth in
Section 4 l(a)(i) has been satisfied, the Borrowers will not permit the ratio of
Cash Flow to Debt Service for the Borrowers determined on a combined basis, to
be less than 1.25 to 1.0, determined as of the end of each fiscal quarter of the
Parent ending on or after March 31, 1999.
"Cash Flow" means, for any fiscal quarter of the Parent, the
net income from operations of the Borrowers for such quarter
plus depreciation, amortization, depletion, and other non-cash
expenses of the Borrowers for such quarter less gains on sales
of assets and other non-cash income for such quarter included
in the determination of net income from operations of the
Borrowers. Cash Flow is a quarter-by-quarter calculation.
"Debt Service" means with respect to any fiscal quarter of the
Parent, the actual principal payments on the Debt of the
Borrowers during such quarter other than for the Note plus
required principal payments on the Note during such quarter.
(b) Current Ratio. The Parent will not permit its ratio of Current
Assets to its Current Liabilities to be less than 1.25 to 1.00, determined as of
the end of each fiscal quarter of the Parent ending on or after April 30, 1999.
"Current Assets" means the current assets of the Parent plus
the unused portion of the Revolving Commitment, but excluding
the current portion of Intangible Assets and amounts due from
officers, directors and shareholders of the Borrower.
"Current Liabilities" means the current liabilities of the
Parent, exclusive of the current portion of the Note.
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SECTION 7.16 Additional Documents; Quantity of Documents; Title Data;
Additional Information. (a) The Borrowers shall execute and deliver or cause to
be executed and delivered such other and further instruments or documents as in
the judgment of the Lender may be required to better effectuate the transactions
contemplated herein and in the other Loan Papers.
(b) The Borrowers will deliver all certificates, opinions, reports and
documents hereunder in such number of counterparts as the Lender may reasonably
request.
(c) The Borrowers shall cause to be delivered to the Lender such title
opinions as the Lender may from time to time reasonably request, in form and
substance and from attorneys acceptable to the Lender, covering such portions of
the Collateral as the Lender may from time to time specify.
(d) The Borrowers shall furnish to the Lender, promptly upon the
request of the Lender, such additional financial or other information concerning
the assets, liabilities, operations, and transactions of the Borrowers as the
Lender may from time to time reasonably request, and notify the Lender not less
than ten Business Days prior to the occurrence of any condition or event that
may change the proper location for the filing of any financing statement or
other public notice or recording for the purpose of perfecting a Lien in any
Collateral, including, without limitation, any change in its name or the
location of its principal place of business or chief executive office; and upon
the request of the Lender, execute such additional Security Instruments as may
be necessary or appropriate in connection therewith.
SECTION 7.17 ENVIRONMENTAL INDEMNIFICATION. EACH BORROWER SHALL
INDEMNIFY, DEFEND AND HOLD THE LENDER AND ITS SHAREHOLDERS, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT, AND AFFILIATES AND EACH TRUSTEE FOR THE
BENEFIT OF THE LENDER UNDER ANY SECURITY INSTRUMENT (COLLECTIVELY, THE
"INDEMNIFIED PARTIES") HARMLESS ON A CURRENT BASIS FROM AND AGAINST ANY AND ALL
CLAIMS, LOSSES, DAMAGES, LIABILITIES, FINES, PENALTIES, CHARGES, ADMINISTRATIVE
AND JUDICIAL PROCEEDINGS AND ORDERS, JUDGMENTS, REMEDIAL ACTIONS, REQUIREMENTS
AND ENFORCEMENT ACTIONS OF ANY KIND, AND ALL COSTS AND EXPENSES INCURRED IN
CONNECTION THEREWITH (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES
AND EXPENSES), ARISING DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM (A) THE
PRESENCE OF ANY HAZARDOUS SUBSTANCES ON, UNDER, OR FROM ANY PROPERTY OF EITHER
BORROWER, WHETHER PRIOR TO OR DURING THE TERM HEREOF, (B) ANY ACTIVITY CARRIED
ON OR UNDERTAKEN ON OR OFF ANY PROPERTY OF EITHER BORROWER, WHETHER PRIOR TO OR
DURING THE TERM HEREOF, AND WHETHER BY EITHER BORROWER OR ANY PREDECESSOR IN
TITLE, EMPLOYEE, AGENT, CONTRACTOR, OR SUBCONTRACTOR OF EITHER BORROWER OR ANY
OTHER PERSON AT ANY IIN~IE OCCUPYING OR PRESENT ON SUCH PROPERTY, IN CONNECTION
WITH THE HANDLING, TREATMENT,
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REMOVAL, STORAGE, DECONTAMINATION, CLEANUP, TRANSPORTATION, OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCES AT ANY TIME LOCATED OR PRESENT ON OR UNDER SUCH PROPERTY,
(C) ANY RESIDUAL CONTAMINATION ON OR UNDER ANY PROPERTY OF EITHER BORROWER, OR
(D) ANY CONTAMINATION OF ANY PROPERTY OR NATURAL RESOURCES ARISING IN CONNECTION
WITH THE GENERATION, USE, HANDLING, STORAGE, TRANSPORTION OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCES BY EITHER BORROWER OR ANY EMPLOYEE, AGENT, CONTRACTOR, OR
SUBCONTRACTOR OF EITHER BORROWER WIIILE SUCH PERSONS ARE ACTING WITHIN THE SCOPE
OF THEIR RELATIONSHIP WITH EITHER BORROWER, IRRESPECTIVE OF WHETHER ANY OF SUCH
ACTIVITIES WERE OR WILL BE UNDERTAKEN IN ACCORDANCE WITH APPLICABLE REQUIREMENTS
OF LAW, INCLUDING ANY OF THE FOREGOING IN THIS SECTION ARISING FROM THE SOLE
NEGLIGENCE, COMPARATIVE NEGLIGENCE OR CONCURRENT NEGLIGENCE OF THE INDEMNIFIED
PARTIES, BUT NOT ANY OF THE FOREGOING IN THIS SECTION ARISING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE INDEMNIFIED PARTY SEEKING
INDEMNIFICATION UNDER THIS SECTION; WITH THE FOREGOING INDEMNITY SURVIVING
SATISFACTION OF ALL OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT.
SECTION 7.18. YEAR 2000 The Borrowers will promptly notify the Lender
in the event the Borrowers discovers or determines that any computer application
(including those of its suppliers, vendors and customers) that is material to
its or any of its Subsidiaries' business and operations will not be Year 2000
compliant, except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
SECTION 7.19 Securities Listing. The common stock of the Parent shall
at all times be listed on a United States national securities exchange or traded
on the NASDAQ.
SECTION 7.20 Exceptions to Covenants. The Borrowers shall not be
permitted to take any action which is permitted by any of the covenants
contained in this Agreement if such action is in breach of any other covenant
contained in this Agreement
ARTICLE VIII
DEFAULTS; REMEDIES
SECTION S. 1 Events of Default: Acceleration of Maturity. If any one or
more of the following events (each an "Event of Default") shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body or otherwise):
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(a) either Borrower shall fail to pay, when due, any principal of, or
interest on, the Note or any fees or any other amount payable hereunder;
(b) either Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 7.1 7.6(b) 7.7 7.8 or 7.9;
(c) either Borrower or any other Person (other than the Lender) shall
fail to observe or perform any covenant or agreement contained in this Agreement
or the other Loan Papers (other than those covered by Sections 8.1(a) or (b)),
for a period of fifteen (15) days after the earlier of (i) any Responsible
Officer of either Borrower shall become aware or reasonably should have become
aware (regardless of the source of such awareness) of such default or (ii)
written notice specifying such default has been given to either Borrower by the
Lender;
(d) either Borrower or the Guarantor shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate or other action to authorize any of the
foregoing;
(e) an involuntary case or other proceeding shall be commenced against
either Borrower or the Guarantor seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed or unstayed for a period of 30 days; or an order for
relief shall be entered against either Borrower or the Guarantor under the
federal bankruptcy laws as now or hereafter in effect;
(f) either Borrower shall fail to pay, when due, any amount which it
shall have become liable to pay to the PBGC or to a Plan under Title W of ERISA;
or the PBGC shall institute proceedings under Title W of ERISA to terminate or
to cause a trustee to be appointed to administer any Plan or a proceeding shall
be instituted by a fiduciary of any Plan against either Borrower to enforce
Section 515 of ERISA; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any such Plan must be
terminated;
(g) either Borrower or the Guarantor (i) shall default in the payment
of any of their respective Debts (other than the Note) and such default shall
continue beyond any applicable cure period, (ii) shall default in the
performance or observance of any other provision contained in any agreements or
instruments evidencing or governing such Debt and such default is not waived and
continues beyond any applicable cure period, or (iii) any other event or
condition occurs which results in the acceleration of such Debt;
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(h) one or more judgments or orders for the payment of money
aggregating in excess of $50,000 shall be rendered against either Borrower or
the Guarantor and such judgment or order (i) shall continue unsatisfied or
unstayed (unless bonded with a supersedeas bond at least equal to such judgment
or order) for a period of 30 days, or (ii) is not fully paid and satisfied at
least ten (10) days prior to the date on which any of its Property may be
lawfully sold to satisfy such judgment or order;
(i) any representation, warranty, certification or statement made or
deemed to have been made by or on behalf of either Borrower in this Agreement or
by either Borrower or any other Person in any certificate, financial statement
or other document delivered pursuant to this Agreement shall prove to have been
incorrect in any respect when made if such incorrect representation, warranty,
certification or statement (i) could reasonably be expected to have any adverse
effect whatsoever upon the validity, performance or enforceability of any Loan
Paper, (ii) is or might reasonably be expected to be material and adverse to the
financial condition or business operations of any Person or to the prospects of
any Person, (iii) could reasonably be expected to impair either Borrower's
ability to fulfill its obligations under the terms and conditions of the Loan
Papers, or (iv) could reasonably be expected to impair the Lender's ability to
receive full and timely payment of the Note;
(j) if any default shall have occurred and be continuing under any
Security Document;
(k) any material license, franchise, permit, or authorization issued to
either Borrower by any Tribunal is forfeited, revoked, or not renewed; or any
proceeding with respect to such forfeiture or revocation is instituted and is
not resolved or dismissed within one year of the date of the publication of the
order instituting such proceeding; or
(1) a default shall occur under any Material Agreement, other than this
Agreement, to which either Borrower is a party or by which any of its Property
is bound; or
(m) a Change of Control Event shall occur;
then, and in every such event, the Lender may, at its option, (i) declare the
outstanding principal balance of and accrued interest on the Note to be, and the
same shall thereupon forthwith become, due and payable without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration or other
notice of any kind, all of which are hereby waived by each Borrower, (ii)
proceed to foreclose the Liens securing the Note, and (iii) take such other
actions as are permitted by law; provided that in the case of any of the Events
of Default specified in clauses(d) or (e) above with respect to either Borrower,
without any notice to either Borrower or any other act by the Lender, the
Revolving Commitment shall terminate and the Note (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration or other
notice of any kind, all of which are hereby waived by each Borrower. Upon the
occurrence and continuance of a Default, the Lender may
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terminate the commitment to lend under this Agreement and the Revolving
Commitment shall thereupon terminate.
SECTION 8.2 Suits for Enforcement. In case any one or more of the
Events of Default specified in Section 8 1 shall have occurred and be
continuing, the Lender may, at its option, proceed to protect and enforce its
rights either by suit in equity or by action of law, or both, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the exercise of any power granted in this Agreement.
SECTION 8.3 Remedies Cumulative. No remedy herein conferred upon the
Lender is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
SECTION 8.4 Remedies Not Waived. No course of dealing and no delay in
exercising any rights under this Agreement or under the other Loan Papers shall
operate as a waiver of any rights hereunder or thereunder of the Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Amendments and Waivers (a) Any term, covenant, agreement or
condition of this Agreement or any other Loan Paper may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively) by a written instrument signed by
either Borrower and the Lender.
(b) No failure or delay by the Lender in exercising any right, power or
privilege under this Agreement or any other Loan Paper shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law or in equity or in any of the other Loan
Papers.
SECTION 9.2 Highest Lawful Interest Rate. Regardless of any provision
contained in any of the Loan Papers, the Lender shall never be entitled to
receive, collect, or apply as interest on all or any part of the Loans, any
amount in excess of the Highest Lawful Rate in effect from day to day, and, in
the event the Lender ever receives, collects, or applies as interest any such
excess, such amount which would be deemed excessive interest shall be deemed a
partial prepayment of the principal of the Loans and treated hereunder as such;
and, if the entire principal amount of the Loans owed to the Lender is paid in
full, any remaining excess shall be repaid to the Borrowers. In determining
whether the interest paid or payable, under any specific contingency, exceeds
the Highest Lawful Rate in effect from day to day, the Borrowers and the Lender
shall, to the maximum
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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 the total amount of interest throughout the entire contemplated term of
the Loans so that the interest rate is uniform throughout the entire term of the
Loans; provided that, if the interest received by the Lender for the actual
period of existence thereof exceeds the Highest Lawful Rate in effect from day
to day, the Lender shall apply or refund to the Borrower the amount of such
excess as provided in this Section, and, in such event, the Lender shall not be
subject to any penalties provided by any laws for contracting for, charging,
taking, reserving, or receiving interest in excess of the Highest Lawful Rate in
effect from day to day.
SECTION 9.3 INDEMNITY. (A) WHETHER OR NOT ANY LOANS ARE EVER FUNDED OR
ANY LETTER OF CREDIT IS EVER ISSUED HEREUNDER, THE BORROWER AGREES TO INDEMNIFY
AND DEFEND AND HOLD HARMLESS ON A CURRENT BASIS THE LENDER AND ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS AND ATTORNEYS, AND EACH OF THEM (THE "INDEMNIFIED
PARTIES"), FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, COSTS,
INTEREST, CHARGES, COUNSEL FEES AND OTHER EXPENSES AND PENALTIES OF ANY KIND
WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUSTAIN OR INCUR IN CONNECTION WITH ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING (WHETHER OR NOT THE LENDER
SHALL BE DESIGNATED A PARTY THERETO) OR OTHERWISE BY REASON OF OR ARISING OUT OF
THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OF THE OTHER LOAN PAPERS
AND/OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
INDEMNIFIED PARTY SHALL BE INDEMNIFIED UNDER THIS SECTION WITHOUT REGARD TO THE
CAUSE OR THE NEGLIGENCE OF ANY INDEMNIFIED PARTY, WHETHER SUCH NEGLIGENCE BE THE
SOLE NEGLIGENCE, COMPARATIVE NEGLIGENCE OR CONCURRENT NEGLIGENCE OF ANY
INDEMNIFIED PARTY.
(b) Any amount to be paid under this Section to the Lender shall be a
demand obligation owing by the Borrowers and if not-paid within ten days of
demand shall bear interest from the date of expenditure by the Lender until paid
at a per annum rate equal to the lesser of (i) the Default Rate or (ii) the
Highest Lawful Rate. The obligations of the Borrowers under this Section shall
survive payment of the Note and the assignment of any right hereunder.
SECTION 9.4 Expenses. (a) Whether or not any one or more of the Loans
are ever funded, the Borrowers shall pay (i) all out-of-pocket expenses of the
Lender, including, without limitation, fees and disbursements of counsel for the
Lender in connection with the preparation of this Agreement and the other Loan
Papers (including, without limitation, the furnishing of any written or oral
opinions or advice incident to this transaction) and, if appropriate, the
recordation of the Loan Papers, any waiver or consent hereunder or any amendment
hereof or any Default or alleged Default hereunder, and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Lender, including,
without limitation, fees and disbursements of counsel in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom, fees of
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auditors, consultants, engineers and other Persons incurred in connection
therewith (including, without limitation, the supervision, maintenance or
disposition of the Collateral) and investigative expenses incurred by the Lender
in connection therewith, which amounts shall be deemed compensatory in nature
and liquidated as to amount upon notice to either Borrower by the Lender and
which amounts shall include, but not be limited to (A) all court costs, (B)
reasonable attorneys' fees, (C) reasonable fees and expenses of auditors and
accountants incurred to protect the interests of the Lender, (I)) fees and
expenses incurred in connection with the participation by the Lender as a member
of the creditors' committee in a case commenced under any Insolvency Proceeding,
(E) fees and expenses incurred in connection with lifting the automatic stay
prescribed in Section 362 Title 11 of the United States Code, and (F) fees and
expenses incurred in connection with any action pursuant to Section 1129 Title
11 of the United States Code all reasonably incurred by the Lender in connection
with the collection of any sums due under the Loan Papers, together with
interest at the per annum interest rate equal to the Default Rate, calculated on
a basis of a calendar year of 365 or 366 days, as the case may be, counting the
actual number of days elapsed, on each such amount from the date of notification
that the same was expended, advanced, or incurred by the Lender until the date
it is repaid to the Lender, with the obligations under this Section surviving
the non-assumption of this Agreement in a case commenced under any Insolvency
Proceeding and being binding upon the Borrowers and/or a trustee, receiver,
custodian, or liquidator of either Borrower appointed in any such case.
(b) EACH BORROWER SHALL INDEMNIFY THE LENDER AGAINST ANY TRANSFER
TAXES, DOCUMENTARY TAXES, ASSESSMENTS OR CHARGES MADE BY ANY GOVERNMENTAL
AUTHORITY BY REASON OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE OTHER
LOAN PAPERS.
(c) Any amount to be paid under this Section to the Lender shall be a
demand obligation owing by the Borrowers and if not paid within ten days of
demand shall bear interest from the date of expenditure by the Lender until paid
at a per annum rate equal to the lessor of the Default Rate or the Highest
Lawful Rate. The obligations of the Borrowers under this Section shall survive
payment of the Note and the assignment of any right hereunder.
SECTION 9.5 Taxes. The Borrowers will, to the extent they may lawfully
do so, pay all Taxes (including interest and penalties but expressly excluding
federal or state income taxes) which may be payable in respect of the execution
and delivery of this Agreement or the other Loan Papers, or in respect of any
amendment of or waiver under or with respect to the foregoing, and will save the
Lender harmless against any loss or liability resulting from nonpayment or delay
in payment of any such Taxes (as limited above). The obligations of the
Borrowers under this Section shall survive the payment of the Note and the
assignment of any right hereunder.
SECTION 9.6 Notices. Except as specifically provided otherwise herein,
all notices, requests and other communications to any party hereunder shall be
in writing (including by telecopy or similar writing) and shall be given to such
party at its address and to the attention of the Person set forth on the
signature pages hereof (or in the case of notices to either Borrower, to the
attention of any officer, or other Person holding a similar position, of such
Borrower) or such other address
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or telecopy number or Person as such party may hereafter specify for such
purpose by notice to the other party. Each such notice, request or other
communication shall be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopier number specified in this Section and the receipt
thereof is acknowledged, (ii) if given by mail, 72 hours after such
communication is deposited in the mails (certified, return receipt requested)
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section or otherwise delivered to either Borrower,
provided that notice to the Lender under Section 2~2 shall not be effective
until received, and provided further that, oral notices to either Borrower of
decreases in the Borrowing Base shall be effective when communicated to either
Borrower.
SECTION 9.7 Right of Set-Offs. (a) Upon the occurrence and during the
continuance of any Event of Default, the Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Lender
to or for the credit or the account of either Borrower against the obligations
of either Borrower to the Lender, irrespective of whether or not the Lender
shall have made any demand under this Agreement or any other Loan Paper and
although such obligations may be unmatured. The Lender agrees promptly to notify
the Borrowers after any such set-off and application made by the Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Lender may have.
(b) Each Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in the Loans may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as filly as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
SECTION 9.8 Survival. All representations, warranties and covenants
made by or on behalf of each Borrower in this Agreement or the other Loan Papers
herein or in any certificate or other instrument delivered by it or ill its
behalf under the Loan Papers shall be considered to have been relied upon by the
Lender and shall survive the delivery to the Lender of such Loan Papers or the
extension of the Loans (or any part thereof), regardless of any investigation
made by or on behalf of the Lender.
SECTION 9.9 Successors and Assigns; Rights of Other Holders. (a) This
Agreement shall be binding on the parties hereto and their respective successors
and inure to the benefit of and be enforceable by the Lender, its legal
representatives, successors and assigns. With respect to each Borrower, this
Agreement and the other Loan Papers and the rights of each Borrower hereunder
and thereunder shall not be assignable in any respect.
(b) The Lender may at any time sell, transfer, assign, or grant
participations in the Obligations or any portion thereof; and the Lender may
forward to each Transferee and prospective Transferee all documents and
information relating to such Obligations, whether furnished by the Borrowers or
otherwise obtained, as the Lender determines necessary or desirable. Each
Borrower
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agrees that each Transferee, regardless of the nature of any transfer to it, may
exercise all rights (including, without limitation, rights of set-off) with
respect to the portion of the Obligations held by it as fully as if such
Transferee were the direct holder thereof, subject to any agreements between
such Transferee and the transferor to such Transferee.
SECTION 9.10 Applicable Law: Venue: Waiver of Jury Trial. (a) THIS
AGREEMENT HAS BEEN NEGOTIATED, IS BEING EXECUTED AND DELIVERED, AND WILL BE
PERFORMED IN WHOLE OR IN PART, IN THE STATE OF TEXAS, AND THE SUBSTANTIVE LAWS
OF SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THE
LOAN PAPERS, EXCEPT TO THE EXTENT THE LAWS OF ANY JURISDICTION WHERE COLLATERAL
IS LOCATED REQUIRE APPLICATION OF SUCH LAWS WITH RESPECT TO SUCH COLLATERAL
(b) ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO, ARISING DIRECTLY OR
INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO, OR FROM THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE LITIGATED, AT THE SOLE DISCRETION AND ELECTION OF THE
LENDER, IN COURTS HAVING SITUS IN DALLAS, DALLAS COUNTY, TEXAS. EACH BORROWER
REREBY SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED
IN DALLAS, DALLAS COUNTY, TEXAS, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO
TRANSFER OR CHANGE THE JURISDICTION OR VENUE OF ANY LITIGATION BROUGHT AGAINST
IT BY THE LENDER IN ACCORDANCE WITH THIS SECTION.
(c) EACH BORROWER AND THE LENDER 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 AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE ACTS OR OMISSIONS OF THE LENDER IN THE ENFORCEMENT OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR OTHERWISE WITH
RESPECT THERETO. THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT FOR
THE LENDER ENTERING INTO THIS AGREEMENT.
SECTION 9.11 Headings. The headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof and
words such as "hereunder" or herein" shall refer to the entirety of this
Agreement unless specifically indicated otherwise.
SECTION 9.12 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument This Agreement shall become
effective at such time as the counterparts hereof
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which, when taken together, bear the signature of each Borrower and the Lender,
shall be delivered to the Lender.
SECTION 9.13 Invalid Provisions, Severability. If any provision of this
Agreement or the other Loan Papers is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term hereof or
thereof, such provision shall be fully severable, this Agreement and the other
Loan Papers shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part thereof, and the remaining
provisions hereof and thereof shall remain in full force and effect and shall
not be affected by the illegal, invalid, or unenforceable provision or by its
severance therefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision there shall be added automatically as a part of this
Agreement or the other Loan Papers a provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be legal,
valid and enforceable.
SECTION 9.14 Revolving Loan. Pursuant to Section 346.004 of the Finance
Code of Texas, each Borrower agrees that Chapter 346 of such Finance Code shall
not govern or in any manner apply to the Loans.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
42
<PAGE> 47
SECTION 9.15 Preclusion of Oral Agreements. THIS WRITTEN LOAN AGREEMENT
REPRESENTS 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.
BORROWERS:
4809 Cole Avenue
Suite 108
Dallas, Texas 75205
Telecopy: 214/559-3945
Name: G. Thomas Graves, III
Title: President
TOREADOR ROYALTY CORPORATION
TOREADOR EXPLORATION & PRODUCTION, INC.
LENDER:
8080 N. Central Expressway
Suite 370
Dallas, Texas 75206
Attention: Energy Group
Telecopy: 214/706-8054
Name: Chris D. Cowan
Title: Assistant Vice President
COMPASS BANK
43
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM TOREADOR
ROYALTY CORPORATION CONSOLIDATED FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED
JUNE 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q
FOR THE SIX MONTHS ENDED JUNE 30, 1999.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 91,837
<SECURITIES> 1,481,069
<RECEIVABLES> 532,757
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 2,546,352
<PP&E> 18,886,710
<DEPRECIATION> 3,025,674
<TOTAL-ASSETS> 18,742,970
<CURRENT-LIABILITIES> 946,851
<BONDS> 0
0
160,000
<COMMON> 881,886
<OTHER-SE> 9,474,233
<TOTAL-LIABILITY-AND-EQUITY> 18,742,970
<SALES> 1,532,401
<TOTAL-REVENUES> 2,352,520
<CGS> 0
<TOTAL-COSTS> 1,748,284
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 353,898
<INCOME-PRETAX> 250,338
<INCOME-TAX> 85,115
<INCOME-CONTINUING> 165,223
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (14,777)
<EPS-BASIC> 0.00
<EPS-DILUTED> 0.00
</TABLE>
