EXHIBIT 10-A
AGREEMENT AND SECOND AMENDMENT
TO CREDIT AGREEMENT
(May 15, 1998)
THIS AGREEMENT AND SECOND AMENDMENT TO CREDIT AGREEMENT (this
"AGREEMENT"), dated as of May 15, 1998, is made and entered into by and among
SANTA FE ENERGY RESOURCES, INC. (the "COMPANY"), a Delaware corporation; the
financial institutions listed on the signature pages hereto (collectively, the
"BANKS"); and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, acting in its capacity
as agent for the Banks (in such capacity, the "AGENT"). The Company, the Banks
and the Agent are herein sometimes called the "PARTIES".
RECITALS:
1. The Company, The Chase Manhattan Bank ("CHASE") as agent, and certain
of the Parties entered into a Credit Agreement dated as of November 13, 1996 and
entered into an Agreement and First Amendment to Credit Agreement dated as of
December 19, 1996. Such Credit Agreement, as so amended, is herein called the
"CREDIT AGREEMENT". Chase has resigned as agent in accordance with SECTION 11.8
of the Credit Agreement.
2. The Parties desire to adopt the Credit Agreement as their own agreement
and to amend the Credit Agreement in certain respects to extend the maturity
date, to provide for additional financial institutions to become Banks, to
enlarge the Commitments of the Banks, to permit additional Total Debt and
Guaranties, to appoint a new Agent, to change the governing law, and to make
certain other changes thereto, all as more fully described below; and to ratify,
confirm and continue the Credit Agreement as so adopted and amended.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
the Parties, the Parties agree as follows:
1. AMENDMENT AND ADOPTION OF THE CREDIT AGREEMENT. The Parties hereby
adopt and continue the Credit Agreement as their own agreement. By executing
this Agreement, each of the Parties agrees to be bound by the terms of the
Credit Agreement as hereby adopted and amended. Each of the financial
institutions executing this Agreement shall succeed to the rights of and be
obligated to perform the obligations of a Bank under the Credit Documents and
shall be considered a "Bank" for all purposes of the Credit Documents.
2. AMENDMENT OF DEFINITIONS. SECTION 1.1 of the Credit Agreement is
amended to amend the following definitions:
""BUSINESS DAY" shall mean any day other than a day on which
commercial banks are authorized or required to close in Houston, Texas,
and where such term is used in the definition of "QUARTERLY DATE" or, if
such day relates to a borrowing of, a payment or prepayment of principal
of or interest on, or an Interest Period for, a Eurodollar Loan or a
notice by the Company with respect to any such borrowing, payment,
prepayment or Interest Period, which is also a day on which dealings in
Dollar deposits are carried out in the relevant Eurodollar interbank
market.
""COMMITMENT" means, as to any Bank, the obligation, if any, of such
Bank to extend credit to the Company in the form of Loans and Letter of
Credit Liabilities in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount set forth opposite such
Bank's name on the signature pages of the Second Amendment under the
caption "Commitment" or in its Assignment Agreement (as the same may be
reduced from time to time or terminated pursuant to SECTION 2.5, modified
pursuant to SECTION 12.6 or increased pursuant to SECTION 13 of the Second
Amendment.
""HIGHEST LAWFUL RATE" shall mean, on any day, the maximum
nonusurious rate of interest permitted for that day by whichever of
applicable federal or Texas law permits the higher interest rate, stated
as a rate per annum. On each day, if any, that applicable Texas law
establishes the Highest Lawful Rate, the Highest Lawful Rate shall be the
"weekly ceiling" (as defined in ss.303 of the Texas Finance Code and
Chapter 1D of Title 79, Texas Rev. Civ.
Stats. 1925, as amended, respectively) for that day.
""MATURITY DATE" shall mean the earlier of (a) the date the
principal amount then outstanding of and accrued interest on the Loans,
all Letter of Credit Liabilities, all fees and all other amounts payable
hereunder and under the Notes become due and payable pursuant to SECTION
10.1 or (b) May 15, 2003.
""PRIME RATE" shall mean, as of a particular date, the generally
applicable prime rate most recently determined by Chase Texas. Without
notice to the Company or any other Person, the Prime Rate shall change
automatically from time to time as and in the amount by which said prime
rate shall fluctuate. The prime rate is a reference rate and may not
necessarily represent the lowest or best rate actually charged to any
customer. Chase Texas may make commercial loans or other loans at rates of
interest at, above or below the prime rate.
""PRINCIPAL OFFICE" shall mean the principal banking office of the
Agent, presently located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
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Additionally, the references to "Chase" in the definitions of
"Eurodollar Rate" and "Indemnified Person", in SECTION 12.6(G) of the Credit
Agreement, and in the addresses on each of the exhibits to the Credit Agreement,
are amended to refer instead to Chase Texas.
3. ADDITIONAL DEFINITIONS. There are hereby added to SECTION 1.1 of the
Credit Agreement the following definitions:
""CHASE TEXAS" shall mean Chase Bank of Texas, National Association,
in its individual capacity."
""SECOND AMENDMENT" shall mean the Agreement and Second Amendment to
Credit Agreement dated as of May 15, 1998."
4. AMENDMENT OF SECTION 1.2(I). SECTION 1.2(I) of the Credit Agreement is
hereby amended to provide in its entirety as follows:
"(i) All times of day used in the Credit Documents mean local time
in Houston, Texas."
5. AMENDMENT OF SECTION 2.1(A). SECTION 2.1(A) of the Credit Agreement is
amended by adding at the end of that section the following sentence:
"The Company and the Banks expressly agree, pursuant to Chapter 346
("CHAPTER 346") of the Texas Finance Code, that Chapter 346 (which relates
to open-end line of credit revolving loan accounts) shall not apply to any
extension of credit under this Agreement and that neither this Agreement
nor any such extension of credit shall be governed by Chapter 346 or
subject to its provisions."
6. AMENDMENT OF SECTION 9.7(B). SECTION 9.7(B) of the Credit Agreement is
amended to provide in its entirety as follows:
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"(b) INDEBTEDNESS. Create, incur, suffer or permit to exist, or
assume or enter into any Total Debt or any Guaranty, whether direct,
indirect, absolute, contingent or otherwise, EXCEPT: (a) Total Debt under
the Credit Documents; (b) Total Debt secured by Liens permitted by SECTION
9.7(A); (c) the Senior Subordinated Notes; (d) Total Debt in respect of
Other Letters of Credit; (e) bonds or surety obligations required by any
Governmental Authority in connection with the operation of the property of
the Company and its Subsidiaries; (f) Total Debt or Guaranties to and
among the Company and the Restricted Subsidiaries or Guaranties of Total
Debt of the Company and the Restricted Subsidiaries; (g) other Total Debt
having a weighted average life to maturity of not less than seven years
from the date of issuance thereof and subject to terms (including
representations, warranties, covenants and defaults and events of default)
no more restrictive (as determined by the Agent in its sole discretion)
with respect to the issuer thereof than the terms of the Credit Documents;
(h) unsecured Total Debt or Guaranties constituting Total Debt in an
aggregate amount at any one time outstanding not to exceed $50,000,000;
and (i) unsecured Guaranties, not constituting Total Debt, in an aggregate
amount at any one time outstanding not to exceed $25,000,000.
Notwithstanding anything to the contrary in this SECTION 9.7(B), no
member of the Combined Group shall create, incur or assume any Total Debt
or Guaranty if to do so would cause or enlarge a Borrowing Base Deficiency
or violate any other provision of this Agreement."
7. BORROWING BASE AND AVAILABLE BORROWING BASE. Until changed in
accordance with the Credit Agreement, the Borrowing Base and the Available
Borrowing Base shall each be $250,000,000.
8. DESIGNATION OF AGENT. The Banks hereby appoint Chase Texas as Agent
under the Credit Documents, and Chase Texas hereby accepts such appointment.
Chase Texas hereby succeeds to and becomes vested with all the rights, powers,
privileges and duties of the Agent, and Chase is hereby discharged from its
duties and obligations under the Credit Documents. Chase Texas hereby notifies
the Company and the Banks that the Principal Office is the Principal Office as
defined in this Agreement. The address of the Agent in each of the Credit
Documents and the exhibits thereto shall be the Principal Office (as defined in
the Credit Agreement).
With respect to its Commitment, Loans and Letter of Credit Liabilities,
Chase Texas in its capacity as a Bank hereunder shall have the same rights and
powers under the Credit Documents as any other Bank and may exercise the same as
though it were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. The Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust,
letter of credit, agency or other business with the Company (and any of its
Affiliates) as if it were not acting as the Agent, and the Agent may accept fees
and other consideration from the Company and its Affiliates (in addition to the
fees heretofore agreed to between the Company and the Agent) for services in
connection with this Agreement or otherwise without having to account for the
same to the Banks. Without limiting the rights and remedies of the Banks
specifically set forth herein, no other Bank by virtue of being a Bank hereunder
shall have any interest in any such activities, any present or future guaranty
by or for the account of the Company, any present or future offset exercised by
the Agent in respect of any such other activities, or any present or future
property at any time taken as security for any such other activities; PROVIDED,
HOWEVER, that if any payment in respect of such guaranties or such property or
the proceeds thereof shall be applied to the Obligations, each Bank shall be
entitled to share in such application PRO RATA according to its portion of the
Obligations.
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9. PLACE OF PAYMENT. The place of payment of each of the Notes shall be
the Principal Office (as defined in the Credit Agreement).
10. AMENDMENT OF SECTION 12.11. SECTION 12.11 of the Credit Agreement is
hereby amended to provide in its entirety as follows:
"12.11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(A) EXCEPT TO THE EXTENT OTHERWISE SPECIFIED IN THE CREDIT
DOCUMENTS, EACH CREDIT DOCUMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (TO THE EXTENT PERMITTED BY
LAW, OTHER THAN ITS CONFLICT OF LAW RULES) AND THE FEDERAL LAWS OF THE
UNITED STATES OF AMERICA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE SOUTHERN DISTRICT OF
TEXAS, HOUSTON DIVISION, AND THE COMPANY HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE COMPANY HEREBY
IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS ▇▇▇▇▇ ▇. ▇▇▇▇▇, WITH OFFICES
ON THE DATE HEREOF AT ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND
ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL
LEGAL PROCESS, SUMMONSES, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY
SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND
AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH OR THE COMPANY DESIRES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT, THE COMPANY AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN HOUSTON, TEXAS ON THE
TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT
UNDER THIS AGREEMENT. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE TEN DAYS
AFTER SUCH MAILING. NOTHING IN THIS AGREEMENT SHALL AFFECT THE RIGHT OF
THE AGENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO THE EXTENT PERMITTED BY LAW TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE TO PROCEED AGAINST THE COMPANY IN
ANY OTHER JURISDICTION.
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(B) TO THE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT BROUGHT IN THE TEXAS COURTS REFERRED TO IN CLAUSE
(A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED BY ANY CREDIT DOCUMENT."
11. AMENDMENT OF EXHIBIT A. EXHIBIT A to the Credit Agreement is amended
to be identical to EXHIBIT A to this Agreement.
12. PRICING SCHEDULE. On and after the Effective Date, the Pricing
Schedule shall be the Pricing Schedule attached to this Agreement.
13. INCREASE OF COMMITMENTS. PROVIDED that no Default shall have occurred
and be continuing, the Company shall have the right, without the consent of the
Banks but subject to the approval of the Agent (which consent shall not be
unreasonably withheld), to effectuate from time to time an increase in the
Aggregate Commitment under the Credit Agreement by adding to the Credit
Agreement one or more commercial banks or other financial institutions (who
shall, upon completion of the requirements stated in this SECTION 13, constitute
Banks hereunder), or by allowing one or more Banks to increase their Commitments
hereunder, so that such added and increased Commitments shall equal the increase
in Commitments effectuated pursuant to this SECTION 13; PROVIDED that (a) no
increase in Commitments pursuant to this SECTION 13 shall result in the
Aggregate Commitment exceeding $300,000,000, (b) no Bank's Commitment amount
shall be increased without the consent of such Bank, and (c) on the effective
date of any such increase in Aggregate Commitment, there are no outstanding
Eurodollar Loans. The Company shall give the Agent three Business Days' notice
of the Company's intention to increase the Aggregate Commitment pursuant to this
SECTION 13. Such notice shall specify each new commercial bank or other
financial institution, if any, the changes in amounts of Commitments that will
result, and such other information as is reasonably requested by the Agent. Each
new commercial bank or other financial institution, and each Bank agreeing to
increase its Commitment, shall execute and deliver to the Agent a document
satisfactory to the Agent pursuant to which it becomes a party hereto or
increases its Commitment, as the case may be, which document, in the case of a
new commercial bank or other financial institution, shall (among other matters)
specify the domestic lending office and Eurodollar lending office of such new
commercial bank or other financial institution. In addition, the Company shall
execute and deliver a Note in the principal amount of the Commitment of each new
commercial bank or other financial institution, or, against delivery to it of
such Bank's existing Note, a replacement Note in the principal amount of the
increased Commitment of each Bank agreeing to increase its Commitment, as the
case may be. Such Notes and other documents of the nature referred to in this
SECTION 13 shall be furnished to the Agent in form and substance as may be
reasonably required by it. Upon the execution and delivery of such documents,
such new commercial bank or financial institution shall constitute a "Bank"
under the Credit Agreement with a Commitment as specified therein, or such
Bank's Commitment shall increase as specified therein, as the case may be.
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14. CONDITIONS PRECEDENT. This Agreement shall become effective on the
date (the "EFFECTIVE DATE") that each of the following conditions shall have
been satisfied or waived in the discretion of the Agent:
(a) CORPORATE ACTION AND STATUS. The Agent shall have received
copies of the Organizational Documents of the Company certified by the
Secretary of the Company, and resolutions of the Board of Directors of the
Company, certified by the Secretary of the Company, for all corporate
action taken by the Company authorizing the execution, delivery and
performance of this Agreement and the Notes, together with such
certificates as may be appropriate to demonstrate the existence,
qualification and good standing of and payment of taxes by each member of
the Combined Group in each jurisdiction listed for such member on SCHEDULE
III to this Agreement.
(b) INCUMBENCY. The Company shall have delivered to the Agent a
certificate in respect of the name and signature of each officer who (i)
is authorized to sign on its behalf this Agreement and the Notes and (ii)
will, until replaced by another officer or officers duly authorized for
that purpose, act as its representative for the purposes of signing
documents and giving notices and other communications in connection with
this Agreement and the other Credit Documents. The Agent and each Bank may
conclusively rely on such certificates until they receive notice in
writing from the Company to the contrary.
(c) NOTES. The Agent shall have received the appropriate Note of the
Company for each Bank, duly completed and executed.
(d) CREDIT DOCUMENTS. The Company shall have duly executed and
delivered this Agreement and the other Credit Documents provided for
herein to which it is a party, and each such Credit Document shall be in
Proper Form. Each such Credit Document shall be in substantially the form
furnished to the Banks prior to their execution of this Agreement,
together with such changes therein as the Agent may approve in its
discretion. The Company shall have paid to the Agent all fees and expenses
in the amounts previously agreed upon in writing among the Company and the
Agent and all amounts due under SECTION 21.
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(e) OPINION OF COUNSEL TO THE COMPANY. The Agent shall have received
the opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. and of ▇▇▇▇▇ ▇. ▇▇▇▇▇, counsel to
the Company, substantially in the forms of SCHEDULES I and II to this
Agreement, respectively.
(f) COUNTERPARTS. The Agent shall have received counterparts of this
Agreement duly executed and delivered by or on behalf of each of the
parties thereto (or, in the case of any Bank as to which the Agent shall
not have received such a counterpart, the Agent shall have received
evidence satisfactory to it of the execution and delivery by such Bank of
a counterpart hereof).
(g) CONSENTS. The Agent shall have received evidence satisfactory to
it in its discretion that all consents of each Governmental Authority and
of each other Person, if any, required in connection with the execution,
delivery and performance of this Agreement and the Notes have been
received and remain in full force and effect.
(h) OTHER DOCUMENTS. The Agent shall have received such other
documents consistent with the terms of this Agreement and relating to the
transactions contemplated hereby as the Agent may reasonably request.
(i) NO DEFAULT. No Default shall have occurred and be continuing.
(j) NO LEGAL BAR. Such effectiveness shall not violate any Legal
Requirement applicable to the Agent or any Bank.
PROVIDED, HOWEVER, that this Agreement shall not become effective or be binding
on any Party unless all of the foregoing conditions are satisfied not later than
May 31, 1998. The Agent shall promptly notify the Company and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all Parties.
All provisions and payments required by this SECTION 13 are subject to the
provisions of SECTION 12.8 of the Credit Agreement.
15. ACKNOWLEDGMENTS; APPOINTMENT AND AUTHORIZATION. Each of ▇▇▇▇▇ Fargo
Bank (Texas), N.A. and PNC Bank, National Association (collectively, the "NEW
BANKS") hereby (a) acknowledges receipt of copies of the Credit Agreement and
the most recent financial statements of the Company, and (b) acknowledges and
agrees that (1) it has, independently and without reliance upon the Agent or any
other Bank and based on the financial statements of the Company delivered to
such New Bank by the Company and such other documents and information as such
New Bank has deemed appropriate, made its own credit analysis and decision to
become a Bank and (2) it is a Bank for all purposes of the Credit Agreement,
with all of the liabilities and obligations of a Bank to the extent of its
Commitment. Each New Bank irrevocably appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement and the Notes as are delegated to the Agent by the terms of the Credit
Agreement or the Notes, together with all such powers as are reasonably
incidental thereto.
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16. COLLATERAL. Each of the Banks represents to the Agent and each of the
other Banks that it in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or maintenance of the
credit provided for in the Credit Agreement.
17. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE AGENT AND THE BANKS
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THE CREDIT AGREEMENT OR THE
TRANSACTIONS
CONTEMPLATED THEREBY.
18. REPRESENTATIONS TRUE; NO DEFAULT. The Company represents and warrants
to the Agent and each Bank that (a) the representations and warranties contained
in the Credit Agreement are true and correct on and as of the date hereof as
though made on and as of such date (except to the extent such representations
and warranties are expressly stated to be made solely as of an earlier date) and
(b) no event has occurred and is continuing which constitutes a Default under
the Credit Agreement or which upon the giving of notice or the lapse of time or
both would constitute such a Default.
19. RATIFICATION. Except as expressly amended hereby, the Credit
Agreement, as hereby adopted and amended, is in all respects ratified, confirmed
and continued as the agreement of the Parties and is, and shall continue to be,
in full force and effect and binding upon the Parties. The Company hereby agrees
and acknowledges that all of its liabilities and obligations under the Credit
Agreement, as hereby adopted and amended, remain in full force and effect and
binding upon it as of the date of this Agreement.
20. DEFINITIONS AND REFERENCES. Unless otherwise defined herein, terms
used herein which are defined in the Credit Agreement shall have the meanings
therein ascribed to them. The term "Agreement" as used in the Credit Agreement
and the term "Credit Agreement" as used in this Agreement or in any other
instrument, document or writing furnished to the Agent or any Bank by or on
behalf of the Company shall mean the Credit Agreement as hereby amended.
21. EXPENSES; ADDITIONAL INFORMATION. The Company shall pay to the Agent
on demand (i) all out-of-pocket expenses (including fees and disbursements of
special counsel to the Agent and expenses of syndication) in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder and any amendment hereof, and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Agent and each Bank, including fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
22. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
deemed invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and this Agreement shall be valid and enforced to the fullest extent
permitted by applicable law. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions thereof or affecting the validity or
enforceability of such provision in any other jurisdiction and, to this end, the
provisions of this Agreement are severable.
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23. MISCELLANEOUS. This Agreement (a) shall be binding upon and inure to
the benefit of the Company, the Agent and the Banks and their respective
successors and assigns (however, the Company may not assign its rights hereunder
without the express prior written consent of all Banks); (b) may be modified or
amended only in the manner prescribed for amendments to the Credit Agreement in
SECTION 12.5 of the Credit Agreement; (c) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (TO THE EXTENT PERMITTED BY LAW,
OTHER THAN ITS CONFLICT OF LAW RULES) AND OF THE UNITED STATES OF AMERICA; (d)
may be executed in several counterparts, and by the Parties on separate
counterparts, and each counterpart, when so executed and delivered, shall
constitute an original agreement, and all such separate counterparts shall
constitute but one and the same agreement, and (e) together with the Credit
Agreement and the Notes, embodies the entire agreement and understanding among
the Parties with respect to the subject matter hereof and supersedes all prior
agreements, consents and understandings relating to such subject matter. The
headings herein shall be accorded no significance in interpreting this
Agreement.
24. THIS AGREEMENT, TOGETHER WITH THE CREDIT AGREEMENT AND THE NOTES,
REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AS TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized officers effective as of the date provided
herein.
SANTA FE ENERGY RESOURCES, INC.
By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President-Finance
Chief Financial Officer and
Treasurer
COMMITMENT: CHASE BANK OF TEXAS, NATIONAL
$50,000,000 ASSOCIATION, individually and as
Administrative Agent
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notices:
Domestic and Eurodollar
Lending Offices: Chase Bank of Texas, National
Association
600 ▇▇▇▇▇▇, 20th Floor
Chase Bank of Texas, National ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Association Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: June Brand
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
COMMITMENT: ABN AMRO BANK N.V., HOUSTON
$40,000,000 AGENCY, Individually and as a
Co-Agent
By: ______________________________
Name: ____________________________
Title: ___________________________
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notices:
Domestic and Eurodollar Three Riverway, Suite 1700
Lending Offices: ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Three Riverway, Suite 1700 Telephone: 713/▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Telecopy: 713/621-5801
COMMITMENT: BANK OF AMERICA NATIONAL TRUST AND
$40,000,000 SAVINGS ASSOCIATION, Individually
and as a Co-Agent
By: _____________________________
Name: ___________________________
Title: __________________________
Address for Notices & Domestic and
Eurodollar
Lending Office:
Name:▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Account Administrator
Address: Bank of America
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
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Bank of America
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COMMITMENT: NATIONSBANK, N.A.
$40,000,000 Individually and as a Co-Agent
By: ___________________________
Name: _________________________
Title: ________________________
Address for Notices:
Domestic and Eurodollar ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Lending Offices: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
NationsBank, N.A. Telephone: 713/▇▇▇-▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇ Telecopy: 13/247-6568
For Credit to: Acct. #0180019828
Attention: Loan Funds Transfer
Reference: Santa Fe Energy Resources, Inc.
COMMITMENT: BANK OF MONTREAL
$32,500,000
By: _____________________________
Name: ___________________________
Title: __________________________
Address for Notices:
Domestic and Eurodollar 700 Louisiana, Suite 4400
Lending Offices: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Bank Telephone: 713/▇▇▇-▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇ Telecopy: 713/223-4007
For Credit To: Bank of Montreal,
Chicago Branch
Attention: ▇. ▇▇▇▇
Reference: Santa Fe Energy Resources, Inc.
COMMITMENT: ▇▇▇▇▇ FARGO BANK (TEXAS), N.A.,
$40,000,000 Individually and as a Co-Agent
By: ______________________________
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Vice President
Address for Business Matters:
Domestic and Eurodollar ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Lending Offices: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Address for Administrative Matters:
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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COMMITMENT: PNC BANK, NATIONAL ASSOCIATION
$32,500,000
By: _________________________________
▇▇▇▇ ▇. Way
Assistant Vice President
Address for Business Matters:
Domestic and Eurodollar ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Floor
Lending Offices: ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Way
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Two PNC Plaza, Third Floor Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇ Address for Administrative Matters:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (412) 768-4586 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Two PNC Plaza, Third Floor
Pittsburgh, PA 15222
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇