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EXHIBIT 10.1
MUTUAL RELEASE AND WAIVER
MUTUAL RELEASE AND WAIVER dated as of December 23, 1998 (this "Agreement"),
between Rutherford-Moran Oil Corporation (the "Company"), Rutherford-Moran
Exploration Company, Thai Romo Holdings, Inc. and Thai Romo Limited
(collectively, the "Obligors"), The Chase Manhattan Bank ("Chase") and
Chase Securities Inc. ("CSI").
WHEREAS the Obligors and Chase, as lender and as Administrative Agent, are
parties to a Second Amended and Restated Credit Agreement dated as of
September 28, 1998 (the "Second Amended and Restated Credit Agreement"),
providing, subject to the term and conditions thereof, for extensions of
credit to be made by Chase to the Company in an aggregate principal or face
amount not exceeding $200,000,000; and
WHEREAS the Company has executed a version of a letter agreement dated as
of August 13, 1998 and Chase has executed a version of a letter agreement
dated as of August 4, 1998 (each such letter agreement, and any subsequent
letter agreement with respect to substantially the same subject matter
executed by each of the Company and CSI, the "Letter Agreement") pursuant
to which CSI agreed to act as the Company's exclusive financial advisor in
connection with a Transaction (as defined in the August 4, 1998 letter
agreement) (a "Transaction");
NOW THEREFORE, in consideration of the foregoing and the obligations and
undertakings set forth below, each of the Obligors agrees with Chase and
CSI individually and for the express benefit of each such person's
Affiliates, as follows:
DEFINITIONS
1 Except as otherwise defined in this Agreement, terms defined in the
Second Amended and Restated Credit Agreement are used herein as defined
therein.
In addition, for purposes of this Agreement the following terms shall have
the following meanings:
"Affiliate" shall mean, with respect to any person, any principal, officer,
director, member, partner, subsidiary, division, representative, agent,
attorney or employee of such person, or any entity which, indirectly or
directly, through one or more intermediaries, controls or is controlled by,
or is under common control with, such
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person, or any principal, officer, director, member, partner, subsidiary,
division, representative, agent, attorney or employee thereof.
"Claim" shall mean any action, cause of action, suit, debt, sum of money,
fee, account, reckoning, bond, bill, specialty, covenant, contract,
controversy, agreement, promise, variance, trespass, damage, judgment,
extent, execution, claim, or demand whatsoever, in law or in equity.
"person" shall mean any individual, corporation or any other business
entity or any government or agency, authority or instrumentality of any
government.
MUTUAL RELEASE
2(a) The Obligors, in consideration of the terms of this Agreement and
other good and valuable consideration, receipt of which is hereby
acknowledged, hereby irrevocably, unconditionally and generally
release and discharge, and cause each of their Affiliates within the
control of any of the Obligors to irrevocably, unconditionally and
generally release and discharge, each of Chase, CSI and their
respective Affiliates and the heirs, executors, administrators,
receivers, successors and assigns of any of the foregoing
(collectively, the "Chase Releasees") from any and all Claims
against any of the Chase Releasees (other than any (x) Claim arising
from the breach of this Agreement by any Chase Releasee, (y)
obligations of Chase arising after the date hereof under the Second
Amended and Restated Credit Agreement and the agreements executed in
connection therewith and (z) obligations of CSI arising after the
date hereof under the Letter Agreement), which the Obligors or any
of their Affiliates, or any heirs, executors, administrators,
receivers, successors and assigns thereof, ever had, now have or
hereafter can, shall or may have, for, upon or by reason of any
matter, cause or thing whatsoever, in each case from the beginning
of the world to the date of this Agreement.
(b) Chase and CSI, in consideration of the terms of this Agreement and
other good and valuable consideration, receipt of which is hereby
acknowledged, hereby irrevocably, unconditionally and generally
release and discharge, and cause each of their respective Affiliates
within the control of either of Chase or CSI to irrevocably,
unconditionally and generally release and discharge, each of the
Obligors and their respective Affiliates and the heirs, executors,
administrators, receivers, successors and assigns of any of the
foregoing (collectively, the "Obligor Releasees") from any and all
Claims against any of the Obligor Releasees (other than any (x)
Claim arising from the breach of this Agreement by any Obligor
Releasee, (y) Claims arising under the Second Amended and Restated
Credit Agreement and other agreements
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executed in connection therewith (including, without limitation
the Second Warrant Agreement and (z) Claims arising under the
Letter Agreement)), which Chase, CSI or any of their Affiliates,
or any heirs, executors, administrators, receivers, successors
and assigns thereof, ever had, now have or hereafter can, shall or
may have, for, upon or by reason of the Second Amended and
Restated Credit Agreement or CSI acting as financial advisor in
connection with a Transaction, in each case from the beginning of
the world to the date of this Agreement.
COVENANT NOT TO SUE
3(a) The Obligors hereby agree, and agree to cause each of their
Affiliates within the control of the Obligors, not to sue or pursue
any other legal or equitable action against any of the Chase
Releasees with respect to any Claim released pursuant to Clause 2(a)
of this Agreement.
(b) Chase and CSI hereby agree, and agree to cause each of their
Affiliates within the control of Chase or CSI, as applicable, not to
sue or pursue any other legal or equitable action against any of the
Obligor Releasees with respect to any Claim released pursuant to
Clause 2(b) of this Agreement.
WAIVER OF SECOND AMENDED AND RESTATED CREDIT AGREEMENT
4(a) Waiver. Subject to the satisfaction of the conditions precedent
specified in Clause 4(c) below, but with effect on and after the
date hereof, Chase hereby waives compliance by the Obligors with the
terms of Sections 9.06 and 9.07 of the Second Amended and Restated
Credit Agreement to permit the Obligors to enter into and perform
their obligations under a Floating Storage and Offloading System
Bareboat Charter dated as of August 24, 1998 (the "Bareboat
Charter") among Watertight Shipping B.V., Thai Romo, Thaipo Limited
and Palang Sophon Limited.
(b) Representations and Warranties. Each Obligor represents and warrants
to Chase that the representations and warranties set forth in
Section 8 of the Second Amended and Restated Credit Agreement are
true and complete on the date hereof (unless otherwise limited to an
earlier date) as if made on and as of the date hereof and as if each
reference in said Section 8 to "this Agreement" was made after
giving effect to this Mutual Release and Waiver.
(c) Conditions Precedent. As provided in Clause 4(a) above, the waiver
in said Clause 4(a) shall become effective, as of the date hereof,
upon the execution and delivery of this Agreement by each of the
parties hereto.
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(d) Miscellaneous. Except as herein provided, the Second Amended and
Restated Credit Agreement shall remain unchanged and in full force
and effect.
SURRENDER OF WARRANTS
5 Concurrently with the execution of this Mutual Release and Waiver,
the Company is executing an Agreement and Plan of Merger with Chevron
Corporation and Chevron Thailand Inc, providing for the acquisition of the
Company. The Agreement and Plan of Merger contains the provision of interim
financing for the Company to be provided by Chevron Corporation until the
closing of the acquisition on the terms and conditions specified in the
Agreement and Plan of Merger, which financing will be subordinated to
amounts outstanding under the Second Amended and Restated Credit Agreement
as further amended herein.
Based upon the execution of the Agreement and Plan of Merger by all
parties, which definitive agreement is substantially identical to the draft
dated December 22, 1998 previously provided to Chase, then simultaneously
with (i) the closing of the acquisition of the Company, and (ii) the
Replacement (as defined below) of all of the senior Indebtedness and all
other obligations owed to Chase under the Second Amended and Restated
Credit Agreement, Chase shall return to the Company the Stock Units (as
defined in the Second Warrant Agreement) which represented, as of September
28, 1998, 2,149,120 shares of common stock, par value $.01 per share, of
the Company (the "Surrendered Warrants") (provided that a total of
2,561,400 Stock Units have been delivered to Chase pursuant to the Second
Warrant Agreement).
In the event that prior to June 1, 1999, the Company either (i) terminates
the Purchase Agreement or (ii) advises CSI and Chase in writing that the
closing of the sale of the Company under the Purchase Agreement will not
occur on or prior to June 1, 1999, this Clause 5 shall be of no further
force or effect.
"Replacement" shall mean (x) the assumption, in form and substance
satisfactory to Chase in its sole discretion, by Chevron or an Affiliate of
Chevron acceptable to Chase in its sole discretion, of all senior
Indebtedness and all other obligations under the Second Amended and
Restated Credit Agreement of the Obligors owed to Chase or (y) the
repayment by an entity satisfactory to Chase, in its sole discretion, of
all senior Indebtedness and all other obligations under the Second Amended
and Restated Credit Agreement of the Obligors owed to Chase.
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GOVERNING LAW
6 This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.
COUNTERPARTS
7 This Agreement may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed an
original.
BENDING EFFECT; SURVIVAL
8 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns
forever, and shall survive the termination of the Letter Agreement and the
Second Amended and Restated Credit Agreement.
NOTICES
9 All notices and other communications provided for herein shall be
given or made in writing,
(i) if to the Obligors:
Address for Notices:
c/o Rutherford-Moran Oil Corporation
5 Greenway Plaza, Suite 220
Houston, Texas 77046
Attention: Chief Financial Officer
Telephone No.: 713-622-5555
Fax No.: 713-621-7072
(ii) if to CSI or Chase
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Larry Landry
Telephone No.: 212-270-3800
Fax No.: 212-270-0994
with copies to:
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The Chase Manhattan Bank
380 Madison Avenue, 9th Floor
New York, New York 10019
Attention: Elizabeth A. Kelley
Telephone No.: 212-622-4868
Fax No.: 212-622-4834
and
The Chase Manhattan Bank
600 Travis Street, 20th Floor
Houston, Texas 77002-8086
Attention: Russell Johnson
Telephone No.: 713-216-5617
Fax No.: 713-216-4295
or at such other address as shall be designated by any party to this
Agreement to the other parties hereto.
WAIVER OF THIS AGREEMENT
10 The waiver by any person of a specific breach or default of this
Agreement by any other person party hereto shall not be deemed a waiver of
any other breach or default. No amendment, waiver or other modification of
any provision of this Agreement shall be effective unless contained in a
writing signed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
RUTHERFORD-MORAN OIL CORPORATION
By /s/ DAVID F. CHAVENSON
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Title: VP FINANCE & CFO
RUTHERFORD-MORAN EXPLORATION
COMPANY
By /s/ DAVID F. CHAVENSON
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Title: VP
THAI ROMO HOLDINGS, INC
By /s/ DAVID F. CHAVENSON
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Title: VP
THAI ROMO LIMITED
By /s/ DAVID F. CHAVENSON
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Title: MANAGING DIRECTOR
THE CHASE MANHATTAN BANK
By /s/ ELIZABETH KELLEY
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Title:
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CHASE SECURITIES INC.
By /s/ R.M. BOWEN, III
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Title:
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