EXHIBIT 10(c)
AGREEMENT AND SECOND AMENDMENT
TO REVOLVING AND TERM CREDIT AGREEMENT
THIS AGREEMENT AND SECOND AMENDMENT TO REVOLVING AND TERM CREDIT
AGREEMENT, hereinafter referred to as this "AMENDMENT", dated as of
April 14, 1993, is made and entered into by and among SANTA FE ENERGY
RESOURCES, INC. (the "COMPANY"), a Delaware corporation; each of the
lenders which is a signatory hereto (individually a "BANK" and
collectively the "BANKS"); TEXAS COMMERCE BANK NATIONAL ASSOCIATION
("TCB"), a national banking association, as Administrative Agent for
the Banks (in such capacity, together with its successors in such
capacity, the "AGENT"); and TCB and NATIONSBANK OF TEXAS, N.A.
("NATIONSBANK"), a national banking association, as Co-Agents (in such
capacity, the "CO-AGENTS").
RECITALS:
1. The Company, the Agent, the Co-Agents and the Banks have
entered into a Revolving and Term Credit Agreement dated as of May 20,
1992 (which Revolving and Term Credit Agreement, as amended to the
date hereof, is herein called the "CREDIT AGREEMENT").
2. The parties hereto desire to amend the Credit Agreement in
certain respects to provide, among other things, that the Company,
subject to certain terms and conditions, may reborrow any amounts
prepaid on the unpaid principal balance of the Term Loans at the
option of the Company, all as is more fully provided hereinbelow.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and for
other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties hereto do hereby agree as follows:
SECTION 1. DEFINITIONS DELETED. The Credit Agreement is hereby
amended by deleting in its entirety the definition of "Term Loan
Principal Installment" contained in Section 1.1 of the Credit
Agreement.
SECTION 2. DEFINITIONS AMENDED.
(a) The definition of "Applicable Margin" contained in
Section 1.1 of the Credit Agreement is hereby amended by deleting the
following parenthetical phrase each place that it appears therein:
(assuming the Available Amount is fully drawn for determinations
related to the Independent Engineering Report and on the basis of
the actual aggregate amount of
outstanding Revolving Loans and Letter of Credit Liabilities for
all other determinations)
and substituting therefor the following in each such place:
(assuming the Available Amount is fully drawn and that the
aggregate unpaid principal balance of the Term Notes is equal to
the Term Loan Maximum Amount for determinations related to the
Independent Engineering Report and on the basis of the actual
aggregate amount of outstanding Revolving Loans, Term Loans and
Letter of Credit Liabilities for all other determinations)
(b) The definition of "Interest Period" contained in Section
1.1 of the Credit Agreement is hereby amended by deleting the phrase
"due date of the final Term Loan Principal Installment" where it
appears in clause (z) thereof and substituting therefor the phrase
"December 31, 1996."
(c) The following definitions contained in Section 1.1 of the
Credit Agreement are hereby each amended in their entireties to be and
read, respectively, as follows:
"TERM LOAN" shall mean a Loan (including a Term Loan
Readvance) made pursuant to SECTION 2.1(a).
"TERM LOAN COMMITMENT" shall mean, as to any Bank, the
obligation, if any, of such Bank to make Term Loans to the
Company in an initial aggregate principal amount up to but not
exceeding the amount, if any, set forth opposite such Bank's name
on the signature pages hereof under the caption "Term Loan
Commitment," and such Bank's obligation, if any, to make Term
Loan Readvances to the Company in an aggregate principal amount
at any one time outstanding equal to such Bank's Commitment
Percentage times the Term Loan Unused Readvance Commitment then
in effect.
SECTION 3. DEFINITIONS ADDED. Section 1.1 of the Credit
Agreement is hereby amended by adding thereto the following
definitions:
"APPLICABLE PERIODS" shall have the meaning ascribed to it in
the definition of Term Loan Maximum Amount.
"MARGINAL REDUCTION AMOUNT" shall mean, on any date and for
any Applicable Period, the difference of the Term Loan Maximum
Amount for such Applicable Period from the Term Loan Maximum
Amount for the immediately preceding Applicable Period, all as of
such date.
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"TERM LOAN MATURITY DATE" shall mean the earlier of (a) the
date the Agent declares the principal amount then outstanding of
and the accrued interest on the Loans and all fees and all other
amounts payable hereunder and under the Notes to be due and
payable pursuant to SECTION 10.1 or (b) December 31, 1996.
"TERM LOAN MAXIMUM AMOUNT" shall mean, on any day occurring
during the periods (the "APPLICABLE PERIODS") indicated below, an
amount equal to the amount indicated below (as each of said
amounts may be decreased from time to time pursuant to the terms
of SECTION 2.2):
TERM LOAN MARGINAL
PERIOD MAXIMUM AMOUNT REDUCTION AMOUNT
March 31, 1993 through
June 29, 1993 $ 103,000,000 $ -0-
June 30, 1993 through
December 30, 1993 $ 99,417,000 $ 3,583,000
December 31, 1993
through June 29, 1994 $ 90,460,000 $ 8,957,000
June 30, 1994 through
December 30, 1994 $ 70,308,000 $ 20,152,000
December 31, 1994
through June 29, 1995 $ 50,156,000 $ 20,152,000
June 30, 1995 through
December 30, 1995 $ 39,408,000 $ 10,748,000
December 31, 1995
through June 29, 1996 $ 25,078,000 $ 14,330,000
June 30, 1996 through
December 30, 1996 $ 12,539,000 $ 12,539,000
On the Term Loan
Termination Date $ -0- $ 12,539,000
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"TERM LOAN OPTIONAL PREPAYMENT" shall mean any prepayment of
the Term Notes made pursuant to SECTION 3.2(a).
"TERM LOAN READVANCE" shall mean a readvance made pursuant to
SECTION 2.1(a)(ii) of any Term Loan Optional Prepayment.
"TERM LOAN TERMINATION DATE" shall mean the earliest of (a)
the date the Term Loan Commitment is permanently terminated in
its entirety by the Company pursuant to SECTION 2.2(b), (b) the
Term Loan Maturity Date or (c) the date the Agent declares the
Term Loan Commitment terminated pursuant to SECTION 10.1.
"TERM LOAN UNUSED READVANCE COMMITMENT" shall mean, on any
date, the difference of (a) the Term Loan Maximum Amount MINUS
(b) the aggregate outstanding principal balance of the Term
Notes, all determined on such date.
SECTION 4. TERM LOANS; TERM LOAN READVANCES. Section 2.1(a) of
the Credit Agreement is hereby amended in its entirety to be and read
as follows:
(a) TERM LOANS; TERM LOAN READVANCES.
(i) On the date hereof, each Bank shall make to the
Company (and the Company shall borrow from each Bank) a Loan
under this SECTION 2.1(a) in an amount equal to such Bank's Term
Loan Commitment. The aggregate of the Term Loan Commitments on
the date hereof is $145,000,000.
(ii) From time to time after the date hereof and prior to
the Term Loan Termination Date, each Bank shall readvance Term
Loan Optional Prepayments under this SECTION 2.1(a) to the
Company in an aggregate principal amount at any one time
outstanding up to but not exceeding such Bank's Commitment
Percentage of the Term Loan Unused Readvance Commitment. Each
Term Loan Readvance shall be in an amount that is an integral
multiple of $1,000,000. Subject to the conditions herein, any
such Term Loan Optional Prepayment made prior to the Term Loan
Termination Date may be reborrowed pursuant to the terms of this
Agreement; PROVIDED, that any and all Term Loans shall be due and
payable in full at the Term Loan Maturity Date.
(iii) Notwithstanding anything herein to the contrary, (1) no
Bank shall be required to make Term Loan Readvances at any one
time outstanding in excess of such Bank's Commitment Percentage
of the Term Loan Unused
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Readvance Commitment, and (2) if a Bank fails to make a Term Loan
Readvance as and when required hereunder and the Company
subsequently makes a repayment on the Term Notes, such repayment
shall be split among the non-defaulting Banks ratably in
accordance with their respective Commitment Percentages until
each Bank has its Commitment Percentage of all of the outstanding
Term Loans, and the balance of such repayment shall be divided
among all of the Banks in accordance with their respective
Commitment Percentages.
(iv) Notwithstanding anything in this Agreement to the
contrary, no Bank shall be required to make a Term Loan Readvance
(but each Bank shall permit Rollovers) during the existence of an
Engineering Shortfa1l.
SECTION 5. REVOLVING LOANS. Section 2.1(b) of the Credit
Agreement is hereby amended by adding at the end thereof a new
Subsection (vi), which shall be and read as follows:
(vi) Notwithstanding anything contained in the foregoing
provisions of this Section which may appear to be to the contrary
and except in the case of a Rollover or a Revolving Loan to
satisfy a Reimbursement Obligation pursuant to SECTION 4.1, the
Company may not obtain Revolving Loans at any time unless the
Term Loan Unused Readvance Commitment is equal to zero at such
time.
SECTION 6. TERMINATIONS, REDUCTIONS AND CHANGES OF COMMITMENTS
AND TERM LOAN MAXIMUM AMOUNTS. Section 2.2 of the Credit Agreement is
hereby amended in its entirety to be and read as follows:
2.2. TERMINATIONS, REDUCTIONS AND CHANGES OF COMMITMENTS AND TERM
LOAN MAXIMUM AMOUNTS.
(a) MANDATORY. (1) On the Term Loan Termination Date, all
Term Loan Commitments shall be terminated in their entirety. On
the Termination Date, all Revolving Commitments shall be
terminated in their entirety.
(2) In the event that the Company is required to make a
prepayment of the Term Loans pursuant to SECTION 3.2(b)(2)(A) or
3.2(b)(2)(B), the Term Loan Maximum Amount for the then current
Applicable Period shall be reduced by the amount of such
prepayment and an amount equal to such prepayment shall be
applied to reduce the Term Loan Maximum Amounts for each
subsequent Applicable Period PRO RATA based on the respective
Marginal Reduction Amounts as in effect immediately prior to such
reduction; PROVIDED, that if such pro rata
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application does not result in compliance by the Company with all
Required Ratios, then such amount shall be reallocated among such
subsequent Applicable Periods as the Company shall direct to the
extent necessary to bring the Company into compliance with the
Required Ratios.
(3) Except only in the case of any noncompliance
resulting solely from an Engineering Shortfall, and then only
during the cure period permitted by SECTION 10.l(e), the Company
shall from time to time on demand by the Agent reduce the Term
Loan Maximum Amount for any particular Applicable Period by the
amount necessary so that the Company is in compliance with the
Required Ratios at each delivery of a Coverage Report and prepay
the Term Loans so that the aggregate unpaid principal balance of
the Term Notes does not exceed the Term Loan Maximum Amount then
in effect, as so reduced pursuant to SECTION 2.2(a)(5).
(4) In addition, in the event the Company is required
to make a prepayment of the Term Loans pursuant to
SECTION 3.2(b)(3), an amount equal to such prepayment shall be
applied to reduce the Term Loan Maximum Amount for any particular
Applicable Period in the manner necessary to bring the Company
into compliance with the Required Ratios.
(5) Except where reductions in the Term Loan Maximum
Amounts for the Applicable Periods are made PRO RATA pursuant to
SECTION 2.2(a)(2), if the Term Loan Maximum Amount is reduced for
a particular Applicable Period pursuant to SECTION 2.2(a)(2),
2.2(a)(3) or 2.2(a)(4) to bring the Company in compliance with
the Required Ratios, the Term Loan Maximum Amount for the then
current Applicable Period and each subsequent Applicable Period
to occur prior to such particular Applicable Period shall be
reduced by a like amount.
(b) THE COMPANY'S OPTION. The Company shall have the right to
terminate or reduce the unused portion of the Revolving
Commitments at any time or from time to time; PROVIDED that
(1) the Company shall give notice of each such termination or
reduction to the Agent as provided in SECTION 5.5; (2) each such
partial reduction shall be in an integral multiple of $5,000,000,
and (3) the Company may not cause the Available Amount to be less
than the aggregate principal amount of the Revolving Loans then
outstanding plus the Letter of Credit Liabilities then
outstanding. No voluntary reduction in the Available Amount prior
to any scheduled reduction in the Available Amount shall affect
the Available Amount after such scheduled reduction date unless
such
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voluntarily reduced Available Amount is less than the amount
scheduled to be the Available Amount after such scheduled
reduction date, in which case the Available Amount after such
scheduled reduction date shall be no greater than such
voluntarily reduced Available Amount. The Company shall have the
right to (y) terminate or reduce the Term Loan Unused Readvance
Commitment at any time or from time to time or (z) reduce the
Term Loan Maximum Amount for any particular Applicable Period at
any time or from time to time; PROVIDED that (1) the Company
shall give notice of each such termination or reduction to the
Agent as provided in SECTION 5.5, and (2) the Company may not
cause the Term Loan Maximum Amount to be less than the aggregate
principal amount of the Term Loans then outstanding. If the
Company voluntarily reduces the Term Loan Maximum Amount for a
particular Applicable Period, the Term Loan Maximum Amount for
the then current Applicable Period and each subsegment Applicable
Period to occur prior to such particular Applicable Period shall
be reduced by a like amount.
(c) NO REINSTATEMENT. Any reduction in or termination of the
Commitments pursuant to SECTION 2.2 or any reduction in any Term
Loan Maximum Amount may not be reinstated without the written
approval of the Agent and the Banks.
SECTION 7. TERM LOAN COMMITMENT FEES. Section 2.3 of the Credit
Agreement is hereby amended by adding at the end thereof the
following:
In consideration of the Term Loan Commitments, the Company shall
pay to the Agent for the account of each Bank in accordance with
its Commitment Percentage commitment fees (the "TERM LOAN
COMMITMENT FEES") for the period from the date of the execution
of this Agreement to and including the Term Loan Termination Date
at a rate per annum equal to 1/2% of the Term Loan Unused
Readvance Commitment. The Term Loan Commitment Fees shall be
computed for each day and shall be based on the Term Loan Unused
Readvance Commitment for such day. Accrued Term Loan Commitment
Fees shall be payable in arrears, within three days after demand
therefor on or about the Quarterly Dates, and within three days
after demand therefor on or about the Term Loan Termination Date.
All past due Term Loan Commitment Fees shall bear interest at the
Post-Default Rate. Upon receipt, the Agent shall disburse the
Term Loan Commitment Fees to the Banks in accordance with their
Commitment Percentages.
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SECTION 8. RELEASE OF MORTGAGES. Section 2.8 of the Credit
Agreement is hereby amended by deleting the following parenthetical
phrase where it appears therein:
(each calculated assuming that the Available Amount then in
effect is fully drawn)
and substituting therefor the following in each such place:
(each calculated assuming the Available Amount is fully drawn and
that the aggregate unpaid principal balance of the Term Notes is
equal to the Term Loan Maximum Amount)
SECTION 9. USE OF PROCEEDS. Section 2.9 of the Credit
Agreement is hereby amended by adding at the end thereof the
following:
The proceeds of the Term Loan Readvances shall be used by the
Company for working capital and for general corporate purposes.
SECTION 10. OPTIONAL PREPAYMENTS. The last sentence of Section
3.2(a) of the Credit Agreement is hereby amended in its entirety to be
and read as follows:
Optional prepayments of Term Loans shall be applied to the
aggregate unpaid principal balance then owing on the Term Notes.
SECTION 11. MANDATORY PREPAYMENTS.
(a) Section 3.2(b)(1) of the Credit Agreement is hereby
amended by adding at the end thereof the following:
In addition, the Company shall from time to time on demand by the
Agent prepay the Term Loans in such amounts as shall be necessary
so that at all times the aggregate outstanding principal amount
of the Term Loans (including Term Loan Readvances) shall not be
in excess of the Term Loan Maximum Amount.
(b) Sections 3.2(b)(2)(A) and (B) of the Credit Agreement are
hereby amended by deleting the term "to the Term Loan Principal
Installments as herein provided" where it appears in those sections
and substituting therefor in each such place the phrase "to the unpaid
principal balance of the Term Notes."
(c) Section 3.2(b)(2)(C) of the Credit Agreement is hereby
amended in its entirety to be and read as follows:
(C) All amounts prepaid pursuant to Section 3.2(b)(2)(A) or
(B) shall be applied to the unpaid
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principal balance of the Term Notes. The Company may in its
discretion defer making the prepayment required by Section
3.2(b)(2) (A) or (B) until the earlier of (i) the time the
aggregate amount of such prepayments so deferred equals or
exceeds $1,000,000 or (ii) one month after the date the first
such prepayment would otherwise be due.
(d) The second to the last sentence of Section 3.2(b)(3) of
the Agreement is hereby amended in its entirety to be and read as
follows:
If the Company upon any such redetermination shall not be in
compliance with all Required Ratios, the Company shall prepay on
the Business Day following the date of such sale an amount of the
proceeds of all sales of any Adobe Properties not previously
prepaid for application to the unpaid principal balance on the
Term Notes.
SECTION 12. SECTIONS DELETED. (a) The Credit Agreement is hereby
amended by deleting therefrom Section 3.2(b)(4) of the Credit
Agreement in its entirety and renumbering Section 3.2(b)(5) of the
Credit Agreement to now be Section 3.2(b)(4).
(b) The Credit Agreement is hereby amended by deleting
therefrom Section 4.1(b) in its entirety and renumbering Section
4.1(c) of the credit Agreement to now be Section 4.1(b).
SECTION 13. ASSIGNMENTS. (a) Clause (2) of Section 12.6(c) of the
Credit Agreement is hereby amended in its entirety to be and read as
follows:
(2) the aggregate amount of the Commitments and/or Loans of the
assigning Bank subject to each such assignment (determined as of
the date the Assignment Agreement with respect to such assignment
is delivered to the Agent) shall in no event be less $10,000,000
(or $1,000,00O in the case of an assignment between Banks)
(except for certain exceptions approved by the Company and the
Agent or where all of a Bank's Commitments and Loans are being
assigned) and shall be in an amount that is an integral multiple
of $1,000,000 (except for certain exceptions approved by the
Company and the Agent or where all of a Bank's Commitments and
loans are being assigned);
(b) The Agent, the Co-Agents, the Banks and the Company
hereby ratify and consent to the sale of all of WestPac Banking
Corporation's Commitment Percentage of all of the Commitments, Loans
and Letter of Credit Liabilities to one or more of the Banks,
notwithstanding the fact that such sales were not in multiples of
$1,000,000 as required under the Credit Agreement or $75,000, as
required under the Letter of Credit Agreement.
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SECTION 14. EXHIBITS. Exhibit C to the Credit Agreement is hereby
deleted, and there is hereby substituted therefor a new Exhibit C,
which shall be identical to EXHIBIT A, hereto attached and hereby made
a part hereof by reference for all purposes.
SECTION 15. CONDITIONS. This Amendment shall not become effective
until the Company shall have delivered to the Agent each of the
following:
(a) a certificate of the Secretary or any Assistant Secretary
of the Company, in form and substance satisfactory to the Agent,
the Co-Agents and the Banks, dated as of the date hereof, as to
(i) the resolutions of the Board of Directors of the Company
authorizing the execution, delivery and performance of this
Amendment and of all instruments contemplated herein to be
executed and delivered by the Company in connection herewith (a
copy of such resolutions to be attached to such certificate),
such certificate to state that said copy is a true and correct
copy of such resolutions and that such resolutions were duly
adopted and have not been amended, superseded, revoked or
modified in any respect and remain in full force and effect as of
the date of such certificate; (ii) the election, incumbency and
signatures of the officer or officers of the Company executing
and delivering this Amendment and each other instrument or
document furnished in connection herewith; (iii) the Certificate
of Incorporation of the Company in effect as of the date hereof
(a copy of such Certificate of Incorporation to be attached to
the certificate or such certificate to contain a representation
that there have been no changes to such Certificate of
Incorporation since May 20, 1992, when a true, correct and
complete copy of such Certificate of Incorporation was delivered
to the Agent); (iv) the Bylaws of the Company in effect as of the
date hereof (a copy of such By-Laws to be attached to the
certificate or such certificate to contain a representation that
there have been no changes to such Bylaws since May 20, 1992,
when true, correct and complete copies of such Bylaws were
delivered to the Agent); and (v) such other documents and
information as the Agent, the Co-Agents or any of the Banks shall
reasonably request; and
(b) the opinion of Andrews & Kurth, L.L.P., counsel to the
Company, substantially in the form of ANNEX I attached hereto.
SECTION 16. REPRESENTATIONS TRUE; NO DEFAULT. The Company
represents and warrants that the representations and warranties
contained in Section 8 of the Credit Agreement and in the other Credit
Documents are true and correct in all material respects on and as of
the date hereof as though made on and as of such date. The Company
hereby certifies that no event has occurred and is continuing which
constitutes an Event of Default under the Credit
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Agreement or any of the other Credit Documents or which upon the
giving of notice or the lapse of time or both would constitute such an
Event of Default.
SECTION 17. RATIFICATION; LIENS NOT AFFECTED. Except as expressly
amended hereby, the Credit Agreement and the other Credit Documents
shall remain in full force and effect and the Security Documents
secure and shall continue to secure the Term Loans (including the Term
Loan Readvances, as that term is defined in the Credit Agreement as
amended hereby) and the Term Notes. The Credit Agreement, as hereby
amended, and all rights and powers created thereby or thereunder and
under the other Credit Documents are in all respects ratified and
confirmed and remain in full force and effect. The Company hereby
warrants and represents to the Agent, the Co-Agents and the Banks that
the execution and delivery of this Amendment does not and will not
result in any termination, invalidity, unperfection, diminution, lapse
or loss of any rights or remedies under any of the Liens of the
Security Documents or of any of the Security Documents themselves.
SECTION 18. DEFINITIONS AND REFERENCES. Terms used herein which
are defined in the Credit Agreement or in the other Credit Documents
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 the other Credit Documents or any other instrument, document
or writing furnished to any or all of the Agent, the Co-Agents and the
Banks by the Company shall mean the Credit Agreement as hereby
amended.
SECTION 19. EXPENSES; ADDITIONAL INFORMATION. The Company shall
pay to the Agent all reasonable expenses incurred in connection with
the execution of this Amendment. The Company shall furnish to the
Agent, the Co-Agents and the Banks all such other documents, consents
and information relating to the Company or otherwise, as the Agent,
the Co-Agents and the Banks may reasonably require.
SECTION 20. MISCELLANEOUS. This Amendment (a) shall be binding
upon and inure to the benefit of the Company and the Agent, the
Co-Agents and the Banks and their respective successors, assigns,
receivers and trustees (provided, however, that the Company shall not
assign its rights hereunder without the prior written consent of all
of the Banks); (b) may be modified or amended only in accordance with
Section 12.5 of the Credit Agreement; (c) shall be governed by and
construed in accordance with the laws of the State of Texas and the
United States of America; (d) may be executed in several counterparts,
and by the parties hereto 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
other Credit Documents, embodies the entire agreement and
understanding between the parties
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with respect to the subject matter hereof and of the other Credit
Documents and supersedes all prior agreements, consents and
understandings relating to such subject matter. The headings herein
shall be accorded no significance in interpreting this Amendment.
Wherever the term "including" or a similar term is used in this
Amendment, it shall be read as if it were "including by way of example
only and without in any way limiting the generality of the clause or
concept referred to." Any exhibits, appendices and annexes described
in this Amendment as being attached to it are hereby incorporated into
it.
SECTION 21. DTPA WAIVER. The Company waives all rights, remedies,
claims, demands and causes of action based upon or related to the
Texas Deceptive Trade Practices-Consumer Protection Act as described
in Sections 17.41 et seq. of the Texas Business & Commerce Code, as
the same pertains or may pertain to this Amendment or any of the
transactions contemplated therein, to the maximum extent that such
rights, etc. may lawfully and effectively be waived. In furtherance of
this waiver, the Company hereby represents and warrants to the Agent,
the Co-Agents and the Banks that (a) the Company is represented by
legal counsel in connection with the negotiation, execution and
delivery of this Amendment, (b) the Company has a choice other than to
enter into this waiver in that it can obtain the Loans from another
institution and (c) the Company does not consider itself to be in a
significantly disparate bargaining position relative to Agent, the
Co-Agents or any of the Banks with respect to this Amendment.
SECTION 22. RELEASE. The Company hereby releases, discharges and
acquits forever the Agent, the Co-Agents, the Banks and their
respective officers, directors, trustees, agents, employees and
counsel (in each case, past, present or future) from any and all
Claims existing as of the date hereof (or the date of actual execution
hereof by the applicable person or entity, if later). As used herein,
the term "CLAIM" shall mean any and all liabilities, claims, defenses,
demands, actions, causes of action, judgments, deficiencies, interest,
liens, costs and expenses (including court costs, penalties,
attorneys' fees and disbursements, and amounts paid in settlement) of
any kind and character whatsoever, including claims for usury, breach
of contract, breach of commitment, negligent misrepresentation or
failure to act in good faith, in each case whether now known or
unknown, suspected or unsuspected, asserted or unasserted or primary
or contingent, and whether arising out of written documents, unwritten
undertakings, course of conduct, tort, violations of laws or
regulations or otherwise; in each case to the extent, but only to the
extent, such matters relate to this Amendment, the Credit Agreement
and the other Credit Documents and the transactions evidenced and
contemplated hereby and thereby. To the maximum extent permitted by
applicable law, the Company hereby waives all rights, remedies, claims
and defenses based upon or related to SECTIONS 51.003, 51.004 and
51.005 of the Texas Property
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Code, to the extent the same pertain or may pertain to any enforcement
of this Amendment.
NOTICE PURSUANT TO TEX. BUS. AND COMM. CODE SECTION 26.02
THIS AMENDMENT AND ALL OTHER CREDIT DOCUMENTS EXECUTED BY ANY OF
THE PARTIES BEFORE OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE
EXECUTION HEREOF, TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT
WHICH 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.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
signed by their respective duly authorized officers, effective as of
the date which first appears hereinabove.
SANTA FE ENERGY RESOURCES, INC.,
a Delaware corporation
By: M. J. ROSINSKI
M. J. Rosinski, Vice President
and Chief Financial Officer
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, individually,
as Administrative Agent and as
Co-Agent
By: JAMES R. MCBRIDE
James R. McBride
Senior Vice President
NATIONSBANK OF TEXAS, N.A.,
individually and as Co-Agent
By: H. GENE SHIGLS
Name: H. Gene Shigls
Title: Vice President
THE BANK OF NEW YORK
By: M. B. DAVIS
Name: M. B. Davis
Title: Vice President
THE BANK OF NOVA SCOTIA
By: F. C. H. ASHBY
Name: F. C. H. Ashby
Title: Senior Assistant Agent
BANK OF MONTREAL
By: MARK GREEN
Name: Mark Green
Title: Director
CIBC, INC.
By: BRIAN R. SWINFORD
Name: Brian R. Swinford
Title: Vice President
BANQUE PARIBAS HOUSTON AGENCY
By: BARTON D. SCHOUEST
Name: Barton D. Schouest
Title: Group Vice President
By: MEI WAN TONG
Name: Mei Wan Tong
Title: Group Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: GEORGE W. PASSELA
Name: George W. Passela
Title: Managing Director
ABN AMRO Bank, N.V.--HOUSTON AGENCY
By: RONALD A. MAHLE
Name: Ronald A. Mahle
Title: Vice President
By: CHERYL I. LIPSHUTZ
Name: Cheryl I. Lipshutz
Title: Vice President
The undersigned legal counsel for Borrower signs this Agreement not as
a party to it but solely for the purpose of complying with the
provisions of Section 17.42(a)(3) of the Texas Deceptive Trade
Practices-Consumer Protection Act described in Section 21 hereof.
DAVID L. HICKS
David L. Hicks
Illinois Bar No. 06186418