1
EXHIBIT 10.9
BANK OF TEXAS, N.A.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
February 16, 2001
TOREADOR RESOURCES CORPORATION
TOREADOR EXPLORATION & PRODUCTION INC.
TOREADOR ACQUISITION CORPORATION
TORMIN, INC.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Re: Loan Agreement
Ladies and Gentlemen:
This letter sets forth the Loan Agreement among TOREADOR RESOURCES
CORPORATION, a Delaware corporation, TOREADOR EXPLORATION & PRODUCTION INC., a
Texas corporation, TOREADOR ACQUISITION CORPORATION, a Delaware corporation, and
TORMIN, INC., a Delaware corporation (collectively "Borrowers"), and BANK OF
TEXAS, NATIONAL ASSOCIATION ("Bank"), with respect to loans and obligations of
Borrowers to Bank.
1. Loan. (a) Subject to the terms and conditions set forth in this Loan
Agreement and the other agreements, instruments, and documents executed and
delivered in connection herewith (collectively the "Loan Documents"), Bank
agrees to make a revolving loan in the face amount of $75,000,000.00 to
Borrowers (the "Revolving Loan") on the terms set forth in the Revolving
Promissory Note attached as Exhibit A (the "Revolving Note"), for the purposes
set forth below. The unpaid principal balance of the Revolving Note shall bear
interest from the date advanced until paid or until default or maturity at the
rates elected by Borrowers from the following options under the terms of the
Revolving Note: (i) the difference between the Stated Rate less the Applicable
Margin, or (ii) the sum of the LIBOR Rate plus the LIBOR Spread. The Applicable
Margin and the LIBOR Spread will vary as set forth below based on whether the
average principal balance owing on the Revolving Note for the prior quarter is
greater than or equal to seventy-five percent (75%) of the then-current
Borrowing Base (as defined below):
% of Borrowing Base Applicable Margin LIBOR Spread
------------------- ----------------- ------------
Greater than or equal to 75% 1.00% 2.00%
Less than 75% 1.25% 1.75%
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February 16, 2001
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The "Stated Rate" shall be equal to the greater of (i) the rate of interest per
annum then most recently published by The Wall Street Journal as the "prime
rate" on corporate loans for large U.S. commercial banks, or (ii) the sum of the
rate of interest, then most recently published by The Wall Street Journal as the
"federal funds" rate for reserves traded among commercial banks for overnight
use, plus one half of one percent (0.5 %), both as published in the Money Rates
section of The Wall Street Journal. The "LIBOR Rate" means the rate of interest
per annum at which deposits in U.S. dollars are offered by the major London
clearing banks, as reported by Reuters news service (or such other similar news
reporting service as Bank may subscribe to at the time such LIBOR Rate is
determined), in the London interbank Eurodollar market for a period of time
equal or comparable to a 30, 60, or 90 day interest period, as elected by
Borrowers, and in an amount equal to or comparable to the principal amount of
the LIBOR balance to which such interest period relates.
(b) Subject to the terms and conditions hereof, Borrowers may
borrow, repay and reborrow on a revolving basis from time to time during the
period commencing on the date hereof and continuing through 11:00 a.m. (Dallas,
Texas time) on February 16, 2006 (the "Termination Date"), such amounts as
Borrowers may request under the Revolving Loan; provided, however, the total
principal amount outstanding at any time shall not exceed the lesser of (i) the
aggregate sums permitted under the Borrowing Base, which is initially set at
$20,000,000, or (ii) $75,000,000. All sums advanced under the Revolving Loan,
together with all accrued but unpaid interest thereon, shall be due and payable
in full on the Termination Date.
(c) Advances on the Revolving Loan may be used only for the
following purposes: (i) to refinance existing indebtedness owing by Borrowers to
Compass Bank, (ii) the acquisition and development of oil and gas properties,
(iii) the issuance of letters of credit, (iv) working capital purposes, and (v)
other lawful general corporate purposes. To the extent of $_________, proceeds
of the Revolving Loan have been used to pay the outstanding balance owed on a
promissory note dated September 30, 1999, in the principal amount of
$25,000,000, executed by Borrowers, and payable to the order of Compass Bank,
N.A.
(d) At the request of Borrowers, Bank may from time to time
issue one or more letters of credit for the account of Borrowers (the "Letters
of Credit"). Borrowers' availability on the Revolving Loan will be reduced by
the face amount of all unexpired Letters of Credit. Any fundings under any
Letters of Credit will be treated as an advance on the Revolving Loan and will
be secured by the Security Documents (as defined below). At no time may the
aggregate face amount of all outstanding Letters of Credit exceed 10% of the
Borrowing Base. All Letters of Credit shall expire not later than five days
prior to the Termination Date. Borrowers will sign and deliver Bank's customary
forms for the issuance of Letters of Credit. Borrowers agree to pay to Bank a
Letter of Credit fee equal to three-quarters of one percent (0.75%) per annum,
calculated on the aggregated stated amount of each Letter of Credit for the
stated duration thereof (computed on the basis of actual days elapsed as of each
year consisted of 360 days), payable quarterly in arrears
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on the last day of each calendar quarter, plus an additional $500 issuing fee
per Letter of Credit, due at issuance.
(e) Borrowers agree to pay to Bank the following fees that are
non-refundable and earned by Bank upon execution of this Loan Agreement:
(i) Upon execution of this Loan Agreement,
Borrowers agree to pay Bank an origination fee in the amount of $75,000.
(ii) Upon any increase in the Borrowing Base,
Borrowers agree to pay Bank an increase fee equal to one quarter of one percent
(0.25%) of the increase in the Borrowing Base.
(iii) Borrowers agree to pay to Bank a facility fee
equal to Facility Fee Rate set forth below per annum (computed on the basis of
actual days elapsed and as if each calendar year consisted of 360 days) of the
average for the period of calculation of an amount determined daily equal to the
difference between the Borrowing Base and the aggregate outstanding principal
balance of all Loans at such time. The Facility Fee Rate will vary as set forth
below based on whether the average principal balance owing on the Revolving Note
for the prior quarter is greater than or equal to seventy-five percent (75%) of
the then-current Borrowing Base:
% of Borrowing Base Facility Fee Rate
------------------- -----------------
Greater than or equal to 75% 0.500%
Less than 75% 0.375%
This fee is payable quarterly within ten (10) days of Borrowers' receipt of an
invoice from Bank, setting forth evidence of the calculation of the facility fee
for the preceding calendar quarter.
(f) The Revolving Loan, all other loans now or hereafter made
by Bank to Borrowers, or any of them, and any renewals or extensions of or
substitutions for those loans, will be referred to collectively as the "Loans."
The Revolving Note, all other promissory notes now or hereafter payable by
Borrowers, or any of them, to Bank, and any renewals or extensions of or
substitutions for those notes, will be referred to collectively as the "Notes."
(g) A default in any of the Notes will be a default in all
other Notes and all Loan Documents, and a default in any Loan Documents will be
a default in all of the Notes.
2. Collateral. (a) Payment of the Notes will be secured by the first
liens and first security interests created or described in the following
(collectively the "Security Documents"): (i) a Deed of Trust and Security
Agreement (the "Deed of Trust") of even date, executed by Borrowers in favor of
Bank, and covering oil and gas properties located in the following states:
Arkansas,
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February 16, 2001
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Kansas, Mississippi, New Mexico, Oklahoma, and Texas; (ii) a Mortgage,
Collateral Assignment, Security Agreement, and Financing Statement (the
"Louisiana Mortgage") of even date, executed by Borrowers in favor of Bank, and
covering oil and gas properties located in Louisiana; and (iii) a Pledge
Agreement (the "Pledge") of even date, executed by Borrowers in favor of Bank,
and covering the issued and outstanding capital stock or partnership interests
of all existing and hereafter acquired companies, subsidiaries, or partnerships
of Borrowers, or any of them. The Deed of Trust and the Louisiana Mortgage will
renew and consolidate liens and security interests granted by Borrowers to
Compass Bank, N.A.; and Borrowers shall cause Compass Bank, N.A. to assign its
liens and security interest to Bank. All oil and gas properties now or hereafter
mortgaged to Bank by Borrowers, including the oil and gas properties covered by
the Deed of Trust or the Louisiana Mortgage, will be referred to as the
"Properties." If requested by Bank, Borrowers will execute in favor of Bank
mortgages, deeds of trust, security agreements, or amendments, in Proper Form
(as defined below) acceptable to Bank, mortgaging any additional properties and
all additional interests in the Properties acquired by Borrowers.
(b) After an Event of Default (as defined below) or if there
is a Borrowing Base deficiency, Bank reserves the right to require Borrowers to
set up a lockbox account to be managed by Bank for the purpose of collection of
production proceeds from the Properties. Borrowers agree that upon Bank's
election to require the lockbox, Bank will receive the proceeds of oil and gas
produced from or attributable to the Properties for application to the Revolving
Note; and Borrowers hereby direct all production purchasers or operators
distributing proceeds to pay Borrowers' distributions attributable to the
Properties directly to Bank, if Bank so elects. All production proceeds
attributable to the Properties received in the lockbox account by Bank in excess
of the current scheduled monthly payment will be transferred to Borrowers at the
end of each month for their unlimited use, so long as there is no existing Event
of Default. If the production proceeds received by Bank during any month are not
sufficient to make the scheduled monthly payment, Borrowers will pay Bank the
deficiency within ten days. Contemporaneously with the execution of this Loan
Agreement, Borrowers will sign and deliver letters in lieu of transfer orders to
all purchasers of production directing those parties to pay all proceeds from
the Properties to the lockbox account, and these letters, signed in blank, will
be held by Bank until such time as Bank elects to require the lockbox after an
Event of Default. It will be an Event of Default under the Loan Agreement if
production payments for oil and gas produced from or attributable to the
Properties are directed to any party other than the lockbox maintained by Bank
following the establishment of the lockbox under this section.
3. Borrowing Base. (a) On or about April 1 and October 1 of each year
and at any other time and from time to time while this Loan Agreement is in
force, Bank may determine or redetermine, in its sole discretion, a Borrowing
Base (as defined below). Borrowers shall have the right to request once per year
an unscheduled redetermination of the Borrowing Base by Bank and Bank shall
conduct such redetermination using the methods described in this section. The
term "Borrowing Base" refers to the designated loan value (as calculated by Bank
in its sole discretion)
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assigned to the discounted present value of future net income accruing to the
Properties based upon Bank's in-house evaluation of Borrowers' oil and gas
properties. Bank's determination of the Borrowing Base will use such
methodology, assumptions, and discount rates customarily used by Bank with
respect to credits of a similar size and nature in assigning collateral value to
oil and gas properties and will be based upon such other credit factors or
financial information available to Bank at the time of each determination,
including, without limitation, Borrowers' assets, liabilities, cash flow,
liquidity, business, properties, prospects, management, and ownership. If Bank
redetermines the Borrowing Base, Bank will notify Borrowers in writing that it
is doing so. Borrowers acknowledge that increases in the Borrowing Base are
subject to appropriate credit approval by Bank. The first scheduled Borrowing
Base redetermination will be effective as of April 1, 2001.
(b) The outstanding principal balance owing on the Revolving
Note, plus the aggregate face amount of all Letters of Credit, may not exceed
the Borrowing Base at any time, subject to the payout provisions below in the
event of a Borrowing Base decrease. A decrease in the Borrowing Base will result
in an immediate decrease in Bank's commitment under the Revolving Loan. If the
redetermined Borrowing Base is less than the sum of the outstanding principal
then owing on the Revolving Note, plus the aggregate face amount of all Letters
of Credit, Bank will notify Borrowers of the amount of the Borrowing Base and
the amount of the deficiency. Within 30 days after notice is sent by Bank,
Borrowers shall remedy the deficiency by either: (i) making a lump sum payment
on the Revolving Note to reduce the principal outstanding plus Letters of Credit
to an amount equal to or less than the new Borrowing Base; (ii) committing to
make six equal monthly installment payments to reduce the principal plus Letters
of Credit to an amount equal to or less than the new Borrowing Base; or (iii)
mortgaging additional collateral, which must be acceptable to Bank as to type,
value, and title. A failure by Borrowers to resolve a Borrowing Base deficiency
to Bank's satisfaction within the period set forth above will constitute a
default under this Loan Agreement.
(c) At the time of any redetermination, Bank reserves the
right to establish an equal Monthly Commitment Reduction ("MCR") amount by which
the Borrowing Base shall be automatically reduced effective as of the last day
of each successive calendar month until the next Borrowing Base redetermination.
Bank's determination of the MCR will use such methodology, assumptions, and
discount rates customarily used by Bank with respect to credits of a similar
size and nature in determining commitment reductions and will be based upon such
other credit factors or financial information available to Bank at the time of
each determination, including, without limitation, the economic half-life of the
Properties, and Borrowers' assets, liabilities, cash flow, liquidity, business,
properties, prospects, management, and ownership. The MCR will initially be set
at zero dollars ($0). If the outstanding principal balance owing on the
Revolving Note, plus the face amount of all unexpired and outstanding Letters of
Credit, shall exceed the Borrowing Base solely because of an MCR reduction,
Borrowers shall promptly make a single lump sum payment in an amount not to
exceed the MCR to reduce the outstandings below the Borrowing Base. If the
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outstanding principal balance owing on the Revolving Note, plus the face amount
of all unexpired and outstanding Letters of Credit, shall exceed the Borrowing
Base because of a Borrowing Base redetermination (or a Borrowing Base
redetermination combined with a required MCR), Borrowers shall have the right to
cure set forth in subsection (b) above; provided, however, that if the MCR was
applicable before the Borrowing Base redetermination, then the MCR amount will
be due in a lump sum and Bank may continue MCR at the same amount or change the
MCR effective on the redetermination date.
(d) After the first scheduled redetermination, upon each
request by Borrowers for an unscheduled redetermination of the Borrowing Base,
Borrowers will pay a fee equal to $5,000, unless the amount of the loan value
added as a result of the redetermination, as calculated by Bank in its sole
discretion, exceeds $1,000,000, in which case the fee shall be waived.
(e) After the first scheduled redetermination, each time that
Borrowers voluntarily pledge additional oil and gas properties for the purpose
of increasing the Borrowing Base, Borrowers shall pay to Bank a fee equal to the
greater of (i) $5,000 or (ii) one percent (1.0%) of the amount of the increase
in the Borrowing Base. However, should the amount of the loan value of the
additional collateral pledged, as determined by Bank in its sole discretion,
exceed $1,000,000, the fee shall be waived.
(f) If the Borrowers sell, transfer, or otherwise dispose of
any Properties that have an aggregate sales price in excess of ten percent (10%)
of the most recent Borrowing Base, the Borrowing Base will be immediately
reduced. Any deficiency resulting from the sale of any Properties shall be
immediately eliminated by Borrowers pursuant to a single lump sum payment.
4. Conditions Precedent. (a) The obligation of Bank to make the Loan is
subject to Borrowers' satisfaction, in Bank's sole discretion of the following
conditions precedent:
(1) Bank's receipt and satisfactory review by Bank of
the 1999 fiscal year-end and September 30, 2000 year-to-date financial
statements of Borrowers and any subsidiaries, including a balance sheet, an
income statement, and a cash flow statement, prepared in conformity with GAAP.
(2) except as approved by Bank in writing, Borrowers
and all subsidiaries shall be in compliance with all existing obligations, there
shall be no default at closing or any funding on any existing obligations, and
all representations and warranties in connection with existing obligations must
be true.
(3) the negotiation, execution, and delivery of Loan
Documents in Proper Form, including, but not limited to, the following:
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(i) this Loan Agreement;
(ii) the Revolving Note;
(iii) the Deed of Trust;
(iv) the Louisiana Mortgage
(v) the Pledge;
(vi) Letters in Lieu;
(vii) Borrowing resolutions for Borrowers; and
(viii) Assignments of the Compass Bank mortgages
and financing statements.
(4) satisfactory evidence that Bank holds perfected
liens and security interests in all collateral for the Loans, subject to no
other liens or security interests.
(5) receipt and satisfactory review by Bank of
Reserve Reports for the Borrowing Base properties.
(6) there shall not have occurred a material adverse
change in the business, assets, liabilities (actual and contingent), operations,
condition (financial or otherwise) of Borrowers and any subsidiaries taken as a
whole or in the facts and information regarding such entities as represented to
date, from that reflected in Borrowers' financial statements for the year ending
December 31, 1999, as provided to Bank.
(7) there being no order or injunction or other
pending or threatened litigation in which there is a reasonable possibility, in
Bank's judgment, of a decision which could materially adversely affect the
ability of Borrowers to perform under the Loan Documents.
(8) Bank shall have completed and approved a review
of title to, and the status of the environmental condition of, Borrowers' oil
and gas properties, including the Borrowing Base properties, and that the
results of such review shall be acceptable to Bank in its sole discretion.
(9) Bank's satisfaction that (i) Borrowers and any
subsidiaries have taken all necessary and appropriate steps to ascertain the
extent of, and to quantify and successfully address, business and financial
risks resulting from what is commonly referred to as the "Year 2000 problem",
including vendor and supplier risks, and (ii) Borrowers and any subsidiaries'
material computer applications and those of their key vendors and suppliers
will, on a timely basis, adequately address this "problem" in all material
respects.
(10) Bank's receipt and review, with results
satisfactory to Bank and its counsel, of information regarding litigation, tax,
accounting, insurance, pension liabilities (actual or contingent), real estate
leases, material contracts, debt agreements, property ownership, and contingent
liabilities of Borrowers and any subsidiaries.
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(11) Borrowers' establishment of an operating account
with Bank for the receipt of the proceeds of all oil and gas production.
(12) Borrowers shall deliver legal opinions in Proper
Form, from Borrowers' counsel, regarding Borrowers' authority, the
enforceability of the Loan Documents, and other matters reasonably required by
Bank.
(b) Bank will not be obligated to make the Loans or any
advance on the Loans, if, prior to the time that a loan or advance is made, (i)
there has been any material adverse change in any Borrowers' financial condition
since the most-recent financial statements furnished to Bank, (ii) any
representations or warranties made by any Borrowers in this Loan Agreement or
the other Loan Documents is untrue or incorrect as of the date of the advance or
loan, (iii) Bank's review of Borrowers' title to the Properties indicates that
Borrowers' title is unacceptable to Bank, in its sole discretion, (iv) Bank has
not received all Loan Documents appropriately executed by Borrowers and all
other proper parties, (v) Bank has requested that Borrowers execute additional
loan or security documents and those documents have not yet been properly
executed, delivered, and recorded, (vi) Borrowers are not in compliance with the
Borrowing Base and all reporting requirements, or (vii) an Event of Default (as
defined below) has occurred.
5. Representations and Warranties. Borrowers hereby represent and
warrant to Bank as follows:
(a) The execution, delivery, and performance of this Loan
Agreement, the Notes, the, and all of the other Loan Documents by Borrowers
have been duly authorized by the Borrowers' respective board of directors and
constitute legal, valid, and binding obligations of each of the Borrowers,
enforceable in accordance with their respective terms;
(b) The execution, delivery, and performance of this Loan
Agreement, the Notes, the, and the other Loan Documents, and the consummation
of the transaction contemplated, do not require the consent, approval, or
authorization of any third party and do not and will not conflict with, result
in a violation of, or constitute a default under (i) any provision of any
Borrowers' articles of incorporation or bylaws or any other agreement or
instrument binding upon Borrowers, or any of them, or (ii) any law, governmental
regulation, court decree, or order applicable to Borrowers, or any of them;
(c) Each financial statement of Borrowers, now or hereafter
supplied to Bank, was (or will be) prepared in accordance with generally
accepted accounting principles ("GAAP"), consistently applied, in effect on the
date such statement was prepared, in Proper Form, and truly discloses and fairly
presents each Borrowers' financial condition as of the date of each such
statement, and there has been no material adverse change in such financial
condition subsequent to the date of the most recent financial statement supplied
to Bank;
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(d) There are no actions, suits, or proceedings pending or
threatened against or affecting any Borrowers or the Properties, before any
court or governmental department, commission, or board, which, if determined
adversely, would have a material adverse effect on the Properties or the
operations or financial condition of Borrowers, or any of them;
(e) Borrowers have filed all federal, state, and local tax
reports and returns required by any law or regulation to be filed and have
either duly paid all taxes, duties, and charges indicated due on the basis of
such returns and reports, or made adequate provision for the payment thereof,
and the assessment of any material amount of additional taxes in excess of those
paid and reported is not reasonably expected; and
(f) Borrowers are in compliance in all material respects with
all applicable provisions of the Employee Retirement Income Security Act of
1974, as amended or recodified from time to time ("ERISA"); Borrowers have not
violated any provision of any defined employee pension benefit plan (as defined
in ERISA) maintained or contributed to by Borrowers (each a "Plan"); no
Reportable Event as defined in ERISA has occurred and is continuing with respect
to any Plan initiated by Borrowers; and Borrowers have met their minimum funding
requirements under ERISA with respect to each Plan.
6. Covenants. Until the Loans and all other obligations and liabilities
of Borrowers under this Loan Agreement, the Notes, and the other Loan Documents
are fully paid and satisfied, Borrowers agree and covenant that they shall,
unless Bank otherwise consents in writing:
(a) (i) maintain their existence in good standing in the state
of their respective incorporation, maintain their authority to do business in
all other states in which any is required to qualify, and maintain full legal
capacity to perform all their obligations under this agreement and the Loan
Documents, (ii) continue to operate their business as presently conducted, (iii)
not permit any changes in any Borrowers' officers or directors that alter a
majority of the current officers and directors, (iv) not permit any of their
dissolution, liquidation, or other termination of existence or forfeiture of
right to do business, and (v) not form any subsidiary or permit a merger or
consolidation or acquire all or substantially all of the assets of any other
entity, unless Borrowers are the surviving entity and no Event of Default
results.
(b) Manage the Properties in an orderly and efficient manner
consistent with good business practices, and perform and comply with all
statutes, rules, regulations, and ordinances imposed by any governmental unit
upon the Properties or Borrowers and their operations including, without
limitation, compliance with all applicable laws relating to the environment.
(c) Maintain insurance as customary in the industry, including
but not limited to, casualty, comprehensive property damage, and commercial
general liability, and other insurance, including worker's compensation (if
necessary to comply with law), naming Bank as an additional
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insured or a loss payee, and containing provisions prohibiting their
cancellation without prior written notice to Bank, and provide Bank with
evidence of the continual coverage of those policies prior to the lapse of any
policy.
(d) If requested by Bank, Borrowers shall mortgage to Bank any
or all additional oil and gas properties now owned or hereafter acquired by
Borrowers, or any of them.
(e) Not sell, transfer, pledge, encumber, or otherwise dispose
of all or any interest in the Properties or any other collateral, without the
prior written consent of Bank, excluding, however, the sale of hydrocarbons in
the ordinary course of business, and except for the sale of oil and gas
properties having an aggregate sales price not in excess of ten percent (10%) of
the Borrowing Base, and provided that Bank shall not withhold its consent for
any sale unreasonably so long as: (i) the net sales proceeds received by
Borrowers are equal to or greater than net present value of the proved developed
producing oil and gas reserves as of the most recent redetermination date
(scheduled or otherwise) discounted at 15%; (ii) any resulting Borrowing Base
deficiency is immediately eliminated by a single lump sum payment; and (iii)
there is no existing Event of Default; and not sell, lease, assign, transfer, or
otherwise dispose of (whether in one transaction or as a series of related
transactions) all or substantially all of Borrowers' assets.
(f) Promptly inform Bank of (i) any and all material adverse
changes in any Borrowers' financial condition, (ii) all litigation and claims
which could materially affect the financial condition of any Borrowers or the
Properties, (iii) all actual or contingent material liabilities, (iv) the
occurrence of any default under this Loan Agreement, (v) any change in name,
identity, or structure of any Borrowers, and (vi) any uninsured or partially
insured loss of any collateral through fire, theft, liability, or property
damage.
(g) Maintain Borrowers' books and records in accordance with
GAAP, applied on a consistent basis, and permit Bank to examine, audit, and make
and take away copies or reproductions of Borrowers' books and records,
reasonably required by Bank, at all reasonable times; and permit such persons as
Bank may designate at reasonable times to visit, inspect, and appraise the
Properties and examine all records with respect to the Properties, and pay for
the reasonable cost of such inspections required by Bank.
(h) Pay and discharge when due all indebtedness and
obligations, including without limitation, all assessments, taxes, governmental
charges, levies, and liens, of every kind and nature, imposed upon Borrowers or
the Properties, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a lien or charge upon the
Properties, income, or profits, and pay all trade payables and other liabilities
incurred in the ordinary course of business within 90 days of their due date;
provided, however, Borrowers will not be required to pay and discharge any such
assessment, tax, charge, levy, lien, or claim so long as (i) the legality of the
same shall be contested in good faith by appropriate judicial, administrative,
or other legal proceedings,
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and (ii) Borrowers have established adequate reserves with respect to such
contested assessment, tax, charge, levy, lien, or claim in accordance with GAAP.
(i) Not directly or indirectly create, incur, assume, or
permit to exist any indebtedness (including guaranties) in an aggregate amount
greater than $1,000,000, secured or unsecured, absolute or contingent, except
for (i) the indebtedness to Bank, (ii) any indebtedness or current liabilities
incurred in normal day-to-day course of business, and (iii) any indebtedness
already incurred and disclosed in writing to Bank.
(j) Not mortgage, assign, hypothecate, pledge, or encumber,
and not create, incur, or assume any lien or security interest on or in, the
Properties (or any interest in the Properties) or any of Borrowers' property or
assets, except (i) those in favor of Bank, (ii) those existing and disclosed to
Bank in writing, (iii) liens for taxes not delinquent or being contested in good
faith, (iv) mechanic's and materialman's liens with respect to obligations not
overdue or being contested in good faith, (v) liens resulting from deposits to
secure the payments of workers' compensation or social security, and (vi)
purchase money security interests or construction liens that attach solely to
the asset acquired or constructed, that secure indebtedness in an amount less
than the cost and the fair market value of the asset acquired or constructed,
and that are in an aggregate amount not to exceed $1,000,000.
(k) Not make any loans, advances, dividends, or other
distributions to any party, including without limitation, shareholders,
officers, directors, and affiliates, and any profit sharing or retirement plan,
except so long as there is not a default under this Loan Agreement or any other
Loan Documents, Borrowers may distribute to their shareholders an amount not to
exceed $100,000 in the aggregate; and not purchase, acquire, redeem, or retire
any stock of Borrowers; and not permit any transaction or contract with any
affiliates or related parties, except at arms length and on market terms.
(l) Maintain their primary depository accounts and principal
banking relationship at Bank.
(m) Not sell any assets valued in excess of $500,000 in the
aggregate, excluding the sale of hydrocarbons in the ordinary course of business
and the sale of the Properties permitted by this Agreement.
(n) Not invest in speculative options, futures, or other
derivatives.
(o) Maintain a program satisfactory to Bank for hedging,
forward sale, or swap of part of Borrowers' projected production of crude oil
and natural gas.
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
Page 12 of 22
(p) Not enter into any transaction providing for hedging,
forward sale, or swap of crude oil, natural gas, or other commodities, except
hedging required by Bank and except for transactions which meet the following
requirements:
(i) Hedging, forward sale, or swap transactions that
result in a cap on the price to be received by Borrowers, involving in the
aggregate at any time not more than seventy-five percent (75%) of Borrowers'
anticipated production from their proved developed producing oil and gas
properties according to Borrowers' most-recent engineering evaluation provided
to Bank;
(ii) Hedging, forward sale, or swap transactions that
result in a floor (but no cap) on the price to be received by Borrowers,
involving in the aggregate at any time not more than one hundred percent (100%)
of Borrowers' anticipated production from their proved developed producing oil
and gas properties according to Borrowers' most-recent engineering evaluation
provided to Bank; and
(iii) Hedging, forward sale, or swap transactions that
would not result in a price per barrel or mcf lower than the base case price
used by Bank in the most-recent engineering evaluation of Borrowers' oil and gas
properties, adjusted for variances between the hedging price and Borrowers'
actual product price as determined by Bank.
Borrowers and Bank may enter into swaps, collars, floors, caps, options,
corridors, or other contracts, as such terms are referred to in the capital
markets, which are intended to reduce or eliminate the risk of fluctuation in
interest rates.
(q) Indemnify Bank against all losses, liabilities,
withholding and other taxes, claims, damages, or expenses relating to the Loans,
the Loan Documents, or the Borrowers' use of the Loan proceeds, including but
not limited to attorneys and other professional fees and settlement costs, but
excluding, however, those caused solely by or resulting solely from any action
or failure to act by Bank; and this indemnity shall survive the termination of
this Loan Agreement.
(r) Comply in all material respects with all applicable
provisions of the ERISA, not violate any provision of any Plan, meet their
minimum funding requirements under ERISA with respect to each Plan, and notify
Bank in writing of the occurrence and nature of any Reportable Event or
Prohibited Transaction, each as defined in ERISA, or any funding deficiency with
respect to any Plan.
(s) Execute and deliver, or cause to be executed and
delivered, any and all other agreements, instruments, or documents which Bank
may reasonably request in order to give effect to the transactions contemplated
under this Loan Agreement and the Loan Documents, and to grant, perfect, and
maintain liens and security interests on or in the Properties and related
collateral, and promptly cure any defects in the execution and delivery of any
Loan Documents.
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
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7. Financial Covenants. Until the Loans and all other obligations and
liabilities of Borrowers under this Loan Agreement, the Notes, and the other
Loan Documents are fully paid and satisfied, Borrowers agree and covenant that
they will, unless Bank otherwise consents in writing, maintain, on a
consolidated basis, the following financial covenants:
(a) Maintain at the end of each fiscal quarter a minimum Debt
Service Coverage Ratio greater than or equal to 1.25 to 1.0. "Debt Service
Coverage Ratio" is defined as the ratio of (1) the sum of Borrowers' most recent
quarter's net income, excluding non-cash revenues and income, plus interest
expense for the same period, plus taxes for the same period, and plus depletion,
depreciation, amortization, and other non-cash charges for the same period,
divided by (2) the sum of the current maturities of long term debt for the
quarter, plus scheduled maturities of capital leases for the quarter, plus
interest payments required for the same period, and plus mandatory scheduled
preferred dividends paid in cash.
(b) Maintain at the end of each fiscal quarter a minimum
Current Ratio greater than or equal to 1.0 to 1.0. "Current Ratio" is defined as
the ratio of (1) Borrowers' current assets, plus availability on the Revolving
Loan, divided by (2) current liabilities (excluding current maturities of
long-term debt).
(c) Maintain a Tangible Net Worth for Borrowers of not less
than the sum of the following to be tested quarterly, commencing with the
quarter ending December 31, 2000: (i) $13,650,000, plus (ii) fifty percent (50%)
of Borrowers' annual net income accruing after September 30, 2000 (with no
deduction for losses), and plus (iii) one hundred percent (100%) of all equity
contributions to Borrowers after the date of this Loan Agreement.
8. Reporting Requirements. Until the Loans and all other obligations
and liabilities of Borrowers under this Loan Agreement, the Notes, and the other
Loan Documents are fully paid and satisfied, Borrowers will, unless Bank
otherwise consents in writing, furnish to Bank in Proper Form:
(a) As soon as available, and within ninety (90) days of the
end of Borrowers' fiscal year, audited financial statements on a consolidated
basis, consisting of at least a balance sheet, a statement of cash flows, a
statement of operations, a statement of changes in shareholders' equity, and a
statement of contingent liabilities, certified by an independent certified
public accountant acceptable to Bank, (i) as being true and correct in all
material aspects to the best of his knowledge, (ii) as fairly reporting the
financial condition of Borrowers as of the close of the fiscal year and the
results of their operations for the year, and (iii) as having been prepared in
accordance with GAAP, consistently applied;
(b) As soon as available, and within forty-five (45) days of
the end of the first three fiscal quarters of each year, unaudited quarterly
financial statements, consisting of at least a
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
Page 14 of 22
balance sheet, a statement of cash flows, a statement of operations, a statement
of changes in shareholders' equity, and a statement of contingent liabilities,
for the quarter and for the period from the beginning of the fiscal year to the
close of the quarter, certified by authorized officers of Borrowers (i) as being
true and correct in all material aspects to the best of his knowledge, (ii) as
fairly reporting the financial condition of Borrowers as of the close of the
fiscal quarter and the results of their operations for the quarter, and (iii) as
having been prepared in accordance with GAAP, consistently applied;
(c) As soon as available, and in any event within forty-five
(45) days after the end of each calendar quarter, quarterly operating statements
and cash flow statements for the Properties, a hedge transaction report, and a
gas balancing report, all in Proper Form and duly certified by authorized
representatives of Borrowers (i) as being true and correct in all material
aspects to the best of his or her knowledge and (ii) as having been prepared in
accordance with GAAP, consistently applied;
(d) Within fifteen (15) days of filing, copies of Borrowers'
income tax returns, with all schedules and exhibits;
(e) On or before March 1 of each year, a report dated as of
the prior December 31, a report prepared by an independent petroleum engineer or
engineering firm acceptable to Bank, and on or before September 1 of each year,
a report dated as of June 30, a report prepared by Borrowers, both reports
prepared on a consistent basis in accordance with the customary standards and
procedures of the petroleum industry, estimating the quantity of oil, gas, and
associated hydrocarbons recoverable from the Properties and the projected income
and expense attributable to the Properties, including, without limitation, a
description of reserves, net revenue interests and working interests
attributable to the reserves, rates of production, gross revenues, operating
expenses, ad valorem taxes, capital expenditures necessary to cause the
Properties to achieve the rate of production set forth in the report, net
revenues and present value of future net revenues attributable to the reserves
and production therefrom, a statement of the assumptions upon which the
determinations were made and any other matters related to the operations of the
Properties and the estimated income therefrom;
(f) Monthly, a report on a lease-by-lease or unit basis,
showing the gross proceeds from the sale of oil, gas, and associated
hydrocarbons produced from the Properties, the quantity of oil, gas, and
associated hydrocarbons sold, the severance, gross production, occupation, or
gathering taxes deducted from or paid out of the proceeds, the lease operating
expenses, tangible drilling costs, and capital expenditures, the number of xxxxx
operated, drilled, or abandoned, the name, address, telephone number, and
contact with the first purchaser of production for all of the Properties, and
such other information as Bank may reasonably request;
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
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(g) At any time upon request by Bank and within thirty (30)
days of any change thereafter, a list showing the name and address of each
purchaser of oil, gas, and associated hydrocarbons produced from or attributable
to the Properties;
(h) Within forty-five (45) days after the end of each quarter,
a quarterly compliance certificate in the form of Exhibit B attached, signed by
authorized officers of Borrowers and certifying compliance with the financial
covenants and other matters in this Loan Agreement;
(i) As soon as possible and in any event within five (5) days
after the occurrence of any Event of Default, or any event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default,
the written statement of the President or the Chief Financial Officer of
Borrowers setting forth the details of such Event of Default or event and the
action which Borrowers propose to take with respect thereto; and
(j) Such other information respecting the condition and the
operations, financial or otherwise, of Borrowers and the Properties as Bank may
from time to time reasonably request.
9. Events of Default. (a) The occurrence at any time of any of the
following events or the existence of any of the following conditions shall be
called an "Event of Default":
(1) Failure to make punctual payment when due of any sums
owing on any of the Notes or any of the other secured indebtedness (as described
in the Deed of Trust) or any other amounts owed by Borrowers, or any of them, to
Bank; or
(2) Failure of any of the Obligated Parties (as defined
below) to properly perform any of the obligations, covenants, or agreements,
contained in this Loan Agreement or any of the other Loan Documents; or any
material representation or warranty made by any of the Borrowers proves to have
been false, misleading, or erroneous; or
(3) Levy, execution, attachment, sequestration, or other
writ against any real or personal property, representing the security for the
Loans; or
(4) Any "Event of Default" under the Notes or any of the
other Loan Documents, the Events of Default defined in the Notes and Loan
Documents being cumulative to those contained in this Loan Agreement; or
(5) The transfer, whether voluntarily or by operation of
law, of all or any portion of the Properties, without obtaining Bank's partial
release, or except as specifically permitted by this Loan Agreement; or
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
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(6) The failure of any of the Obligated Parties to pay any
money judgment in excess of $150,000, against that party before the expiration
of 30 days after the judgment becomes final or the failure of any of the
Obligated Parties to obtain dismissal within 90 days of any involuntary
bankruptcy proceeding filed against that party; or
(7) Any Borrowers' liquidation, termination of existence,
merger or consolidation with another (unless Borrowers are the surviving
entity), forfeiture of right to do business, or appointment of a trustee or
receiver for any part of their property or the filing of an action seeking to
appoint a trustee or receiver; or
(8) A filing by any of the Obligated Parties of a
voluntary petition in bankruptcy, or taking advantage of any Debtor Relief Laws
(as defined below); or an answer admitting the material allegations of a
petition filed against any of the Obligated Parties, under any Debtor Relief
Laws; or an admission by any of the Obligated Parties in writing of an inability
to pay its or their debts as they become due; or the calling of any meeting of
creditors of any of the Obli gated Parties for the purpose of considering an
arrangement or composition.
(b) Upon any event described in Subsection (a)(1) above
regarding payment of sums owing to Bank, Bank shall provide Borrowers with an
invoice for the payment due and Borrowers shall have five (5) days grace after
the due date in order to cure the default prior to acceleration of the Notes and
exercise of any remedies. Upon any other event described in Subsection (a)
above, Bank shall provide Borrowers with written notice of the default and
Borrowers shall have thirty (30) days after notice in order to cure the default
prior to acceleration of the Notes and exercise of any remedies; except
Borrowers shall have no cure period for any voluntary filing by any Borrowers
under any Debtor Relief Laws or for any Event of Default that cannot be cured
during that period, and provided that Bank is not obligated to provide written
notice of any default which Borrowers report to Bank, but Borrowers shall have
the benefit of any applicable grace or cure period required herein.
(c) The term "Obligated Parties" means Borrowers, or any of
them, any other party liable, in whole or in part, for the payment of the Note,
whether as maker, endorser, guarantor, surety, or otherwise, and any party
executing any deed of trust, mortgage, security agreement, pledge agreement,
assignment, or other contract of any kind executed as security in connection
with or pertaining to this Notes or Loans. The term "Debtor Relief Laws" means
any applicable liquidation, conservatorship, receivership, bankruptcy,
moratorium, rearrangement, insolvency, reorganization, or similar laws affecting
the rights or remedies of creditors generally, as in effect from time to time.
10. Remedies. (a) Upon the occurrence of any one or more of the
foregoing Events of Default and the expiration of any notice, cure, or grace
period required by Section 9(b) above, the entire unpaid principal balances of
the Notes, together with all accrued but unpaid interest thereon, and all other
indebtedness then owing by Borrowers to Bank, shall, at the option of Bank,
become
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
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immediately due and payable without further presentation, demand for payment,
notice of intent to accelerate, notice of acceleration or dishonor, protest or
notice of protest of any kind, all of which are expressly waived by Borrowers.
Any and all rights and remedies of Bank pursuant to this Loan Agreement or any
of the other Loan Documents may be exercised by Bank, at its option, upon the
occurrence of an Event of Default and the expiration of any cure or grace period
required by Section 9(b) above. All remedies of Bank may be exercised
singularly, concurrently, or consecutively, without waiver or election.
(b) All rights of Bank under the terms of this Loan Agreement
shall be cumulative of, and in addition to, the rights of Bank under any and all
other agreements between Borrowers and Bank (including, but not limited to, the
other Loan Documents), and not in substitution or diminution of any rights now
or hereafter held by Bank under the terms of any other agreement.
11. Waiver and Amendment. Neither the failure nor any delay on the part
of Bank to exercise any right, power, or privilege herein or under any of the
other Loan Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power, or privilege preclude any other or
further exercise thereof or the exercise of any other right, power, or
privilege. No waiver of any provision in this Loan Agreement or in any of the
other Loan Documents and no departure by Borrowers therefrom shall be effective
unless the same shall be in writing and signed by Bank, and then shall be
effective only in the specific instance and for the purpose for which given and
to the extent specified in such writing. No modification or amendment to this
Loan Agreement or to any of the other Loan Documents shall be valid or effective
unless the same is signed by the party against whom it is sought to be enforced.
12. Savings Clause. Regardless of any provision contained in this Loan
Agreement, the Notes, or any of the Loan Documents, it is the express intent of
the parties that at no time shall Borrowers or any of the Obligated Parties pay
interest in excess of the Maximum Rate (or any other interest amount which might
in any way be deemed usurious), and Bank will never be considered to have
contracted for or to be entitled to charge, receive, collect, or apply as
interest on any of the Notes, any amount in excess of the Maximum Rate (or any
other interest amount which might in any way be deemed usurious). In the event
that Bank ever receives, collects, or applies as interest any such excess, the
amount which would be excessive interest will be applied to the reduction of the
principal balances of the Notes, and, if the principal balances of the Notes are
paid in full, any remaining excess shall forthwith be paid to Borrowers. In
determining whether the interest paid or payable exceeds the Maximum Rate (or
any other interest amount which might in any way be deemed usurious), Borrowers
and Bank shall, to the maximum extent permitted under applicable law: (i)
characterize any non-principal payment (other than payments which are expressly
designated as interest payments hereunder) as an expense or fee rather than as
interest; (ii) exclude voluntary prepayments and the effect thereof; and (iii)
amortize, pro rate, or spread the total amount of interest throughout the entire
contemplated term of the Notes so that the interest rate is uniform
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
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throughout the term. The term "Maximum Rate" means the maximum interest rate
which may be lawfully charged under applicable law.
13. Notices. Any notice or other communications provided for in this
Loan Agreement shall be in writing and shall be given to the party at the
address shown below:
Bank: BANK OF TEXAS, N.A.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Vice President
With a copy
to counsel
for Bank: Xxxx X. Xxxxxxxx
XXXXXX, XXXXXX & XXXXX, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Borrowers: TOREADOR RESOURCES CORPORATION
TOREADOR EXPLORATION & PRODUCTION INC.
TOREADOR ACQUISITION CORPORATION
TORMIN, INC.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Any such notice or other communication shall be deemed to have been given on the
day it is personally delivered or, if mailed, on the third day after it is
deposited in an official receptacle for the United States mail. Any party may
change its address for the purposes of this Loan Agreement by giving notice of
such change in accordance with this paragraph.
14. Miscellaneous. (a) This Loan Agreement shall be binding upon and
inure to the benefit of Bank and Borrowers, and their respective heirs, personal
representatives, successors, and assigns; provided, however, that Borrowers may
not, without the prior written consent of Bank, assign any rights, powers,
duties, or obligations under this Loan Agreement or any of the other Loan
Documents.
(b) THIS LOAN AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA AND SHALL BE PERFORMED IN DALLAS COUNTY, TEXAS.
BORROWERS AND BANK IRREVOCABLY AGREE THAT VENUE FOR ANY ACTION OR CLAIM RELATED
TO THIS LOAN
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
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AGREEMENT, THE NOTES, THE LOANS, OR THE PROPERTIES SHALL BE IN COURT IN DALLAS
COUNTY, TEXAS.
(c) If any provision of this Loan Agreement or any of the
other Loan Documents is held to be illegal, invalid, or unenforceable under
present or future laws, such provision shall be fully severable and the
remaining provisions of this Loan Agreement or any of the other Loan Documents
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance.
(d) All covenants, agreements, undertakings, representations,
and warranties made in this Loan Agreement and the other Loan Documents shall
survive any closing hereunder.
(e) All documents delivered by Borrowers to Bank must be in
Proper Form. The term "Proper Form" means in form, substance, and detail
satisfactory to Bank in its sole discretion.
(f) Without limiting the effect of any provision of any Loan
Document which provides for the payment of expenses and attorneys fees upon the
occurrence of certain events, Borrowers shall pay all costs and expenses
(including, without limitation, the reasonable attorneys fees of Bank's inside
or independent legal counsel) in connection with (i) the preparation of this
Loan Agreement and the other Loan Documents, and any and all extensions,
renewals, amendments, supplements, extensions, or modifications thereof, (ii)
any action reasonably required in the course of administration of the
Loans,(iii) resolution of any disputes with Borrowers related to the Loans or
this Loan Agreement, and (iv) any action in the enforcement of Bank's rights
upon the occurrence of an Event of Default.
(g) If there is a conflict between the terms of this Loan
Agreement and the terms of any of the other Loan Documents, the terms of this
Loan Agreement will control.
(h) This Loan Agreement may be separately executed in any
number of counterparts, each of which will be an original, but all of which,
taken together, shall be deemed to constitute one agreement.
(i) Bank shall have the right, with the consent of the
Borrowers (unless an Event of Default has occurred and is continuing, in which
case no consent is needed), which will not be unreasonably withheld, (i) to
assign the loan or commitment and be released from liability thereunder, and
(ii) to transfer or sell participations in the loan or commitment with the
transferability of voting rights limited to principal, rate, fees, and term.
15. Notice of Final Agreement. (a) In connection with the Loans,
Borrowers and Bank have executed and delivered this Loan Agreement and the Loan
Documents (collectively the "Written Loan Agreement").
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February 16, 2001
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(b) It is the intention of Borrowers and Bank that this
paragraph be incorporated by reference into each of the Loan Documents.
Borrowers and Bank each warrant and represent that their entire agreement with
respect to the Loans is contained within the Written Loan Agreement, and that no
agreements or promises have been made by, or exist by or among, Borrowers and
Bank that are not reflected in the Written Loan Agreement.
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
Page 21 of 22
(c) THE 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 AGREEMENTS BETWEEN THE PARTIES.
If the foregoing correctly sets forth our agreement, please so
acknowledge by signing and returning the additional copy of this Loan Agreement
enclosed to me.
Yours very truly,
BANK OF TEXAS, N.A.
By:
--------------------------------
Xxxxxxx X. Xxxxxxx,
Senior Vice President
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TOREADOR RESOURCES CORPORATION, et al
February 16, 2001
Page 22 of 22
Accepted and agreed to
this ____ day of February, 2001:
BORROWERS:
TOREADOR RESOURCES CORPORATION
By:
-------------------------------------
G. Xxxxxx Xxxxxx, III, President
TOREADOR EXPLORATION & PRODUCTION INC.
By:
-------------------------------------
G. Xxxxxx Xxxxxx, III, President
TOREADOR ACQUISITION CORPORATION
By:
-------------------------------------
G. Xxxxxx Xxxxxx, III, President
TORMIN, INC.
By:
-------------------------------------
G. Xxxxxx Xxxxxx, III, President
Exhibits
A - Revolving Note
B - Compliance Certificate
