-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WILiR5KTNS7CTlqczA6wxOHNby1IHwM2KHGhf9szGWJU+caYGm0Hh7HGg9wTSGss Vn5JdriAN4SKNJycG1jGFQ== 0000950124-97-005854.txt : 19971114 0000950124-97-005854.hdr.sgml : 19971114 ACCESSION NUMBER: 0000950124-97-005854 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19970930 FILED AS OF DATE: 19971112 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: CRYSTAL OIL CO CENTRAL INDEX KEY: 0000745907 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 720163810 STATE OF INCORPORATION: LA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-08715 FILM NUMBER: 97714269 BUSINESS ADDRESS: STREET 1: 229 MILAM ST CITY: SHREVEPORT STATE: LA ZIP: 71101 BUSINESS PHONE: 3182227791 10-Q 1 THIRD QUARTER 10-Q DATED 9-30-97 1 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 Form 10-Q X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE --- SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 1997 OR --- TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ................. to .................. Commission file number 1-8715 CRYSTAL OIL COMPANY ------------------------------------------------------ (Exact name of registrant as specified in its charter) Louisiana 72-0163810 ------------------------------- ------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 229 Milam Street, Shreveport, Louisiana 71101 ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (318) 222-7791 ---------------- NONE ---------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- Common Stock outstanding on November 10, 1997 2,666,422 ----------- 2 CRYSTAL OIL COMPANY INDEX Page No. ------- Part I Item 1. Financial Statements Consolidated Condensed Balance Sheets - September 30, 1997 (Unaudited) and December 31, 1996 3 Consolidated Condensed Statements of Operations - Three and Nine Months Ended September 30, 1997 and 1996 (Unaudited) 4 Consolidated Condensed Statements of Stockholders' Equity - Nine Months Ended September 30, 1997 and 1996 (Unaudited) 5 Consolidated Condensed Statements of Cash Flows - Nine Months Ended September 30, 1997 and 1996 (Unaudited) 6 Notes to Consolidated Condensed Financial Statements (Unaudited) 8 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 12 Part II Item 1. Legal Proceedings 21 Item 6. Exhibits and Reports on Form 8-K 23 Signatures 24 -2- 3 CRYSTAL OIL COMPANY CONSOLIDATED CONDENSED BALANCE SHEETS (In Thousands)
September 30 December 31 ASSETS 1997 1996 ------------ ----------- (Unaudited) (1) CURRENT ASSETS Cash and cash equivalents $ 40,745 $ 11,576 Marketable securities available for sale 36,765 50,885 Accounts receivable - net 1,334 1,042 Prepaid expenses and other current assets 206 102 ---------- ---------- TOTAL CURRENT ASSETS 79,050 63,605 MARKETABLE SECURITIES 72,548 2,999 PROPERTY, PLANT AND EQUIPMENT - net 103,503 92,965 OTHER ASSETS Deferred tax assets 26,639 6,422 Restricted cash 1,904 1,963 Other 1,729 1,639 ---------- ---------- 30,272 10,024 ---------- ---------- TOTAL ASSETS $ 285,373 $ 169,593 ========== ========== LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES Current portion of long-term obligations $ 267 $ 271 Accounts payable 1,605 796 Other accrued expenses 1,970 510 ---------- ---------- TOTAL CURRENT LIABILITIES 3,842 1,577 LONG-TERM OBLIGATIONS 36,955 36,879 DEFERRED REVENUE 111,674 17,861 COMMITMENTS AND CONTINGENCIES STOCKHOLDERS' EQUITY Senior preferred stock 148 148 Common stock 27 27 Additional paid-in capital 115,310 97,156 Retained earnings 17,417 15,945 ---------- ---------- TOTAL STOCKHOLDERS' EQUITY 132,902 113,276 ---------- ---------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 285,373 $ 169,593 ========== ==========
(1) The balance sheet at December 31, 1996, has been taken from the audited financial statements at that date, and condensed. See accompanying notes to consolidated condensed financial statements. -3- 4 CRYSTAL OIL COMPANY CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS (In Thousands Except Shares and Per Share Amounts) (Unaudited)
Three Months Ended Nine Months Ended September 30 September 30 ------------------------- ------------------------- 1997 1996 1997 1996 ----------- ----------- ----------- ----------- NET REVENUES Gas storage fees $ 2,949 $ 3,126 $ 9,290 $ 9,559 Crude oil and natural gas 644 191 1,157 527 Interest and investment income 1,034 879 2,812 2,609 Other 33 17 58 95 ----------- ----------- ----------- ----------- 4,660 4,213 13,317 12,790 COSTS AND EXPENSES Operating expense and taxes 617 487 1,624 1,434 General and administrative expense 1,272 715 2,630 2,235 Interest and debt expense 832 809 2,442 2,451 Amortization of discount on sale of future contract receivables and forward sales 686 371 1,442 1,171 Depreciation, depletion and amortization 986 800 2,762 2,362 ----------- ----------- ----------- ----------- 4,393 3,182 10,900 9,653 ----------- ----------- ----------- ----------- INCOME BEFORE PROVISION FOR INCOME TAXES 267 1,031 2,417 3,137 PROVISION FOR INCOME TAXES 104 405 945 1,229 ----------- ----------- ----------- ----------- NET INCOME $ 163 $ 626 $ 1,472 $ 1,908 =========== =========== =========== =========== WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING 2,666,022 2,665,372 2,665,755 2,660,610 =========== =========== =========== =========== NET INCOME PER COMMON SHARE $ .06 $ .23 $ .55 $ .72 =========== =========== =========== ===========
See accompanying notes to consolidated condensed financial statements. -4- 5 CRYSTAL OIL COMPANY CONSOLIDATED CONDENSED STATEMENTS OF STOCKHOLDERS' EQUITY (In Thousands) (Unaudited)
Nine Months Ended September 30 -------------------- 1997 1996 --------- --------- SENIOR PREFERRED STOCK Balance at beginning and end of period $ 148 $ 148 --------- --------- COMMON STOCK Balance at beginning and end of period 27 27 --------- --------- ADDITIONAL PAID-IN CAPITAL Balance at beginning of period 97,156 96,902 Issuance of Common Stock 14 254 Utilization of net operating loss carryforward and recognition of deferred tax assets 18,800 - Recognition of environmental remediation liability, net of tax (660) - --------- --------- Balance at end of period 115,310 97,156 --------- --------- RETAINED EARNINGS Balance at beginning of period 15,945 13,472 Net income 1,472 1,908 --------- --------- Balance at end of period 17,417 15,380 --------- --------- TOTAL STOCKHOLDERS' EQUITY $ 132,902 $ 112,711 ========= =========
See accompanying notes to consolidated condensed financial statements. -5- 6 CRYSTAL OIL COMPANY CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (In Thousands) (Unaudited)
Nine Months Ended September 30 ----------------------- 1997 1996 ---------- ---------- Cash flows from operating activities: Net income $ 1,472 $ 1,908 Adjustments to reconcile net income to net cash provided by operating activities: Amortization of deferred financing cost 220 210 Depreciation, depletion and amortization 2,762 2,362 Deferred income taxes (1,077) 1,072 Net gain on sale of property, plant and equipment - (50) Net change in accrued interest income 578 (312) Increase in accounts receivable (292) (164) Decrease (increase) in prepaid expense and other current assets (104) 69 Decrease (increase) in other assets (151) 75 Increase (decrease) in accounts payable and accrued expenses 2,269 (603) ---------- ---------- Net cash provided by operating activities 5,677 4,567 ---------- ---------- Cash flows from investing activities: Acquisition of DeSoto Properties (12,353) - Proceeds from sale of property, plant and equipment - 65 Capital expenditures (857) (707) Purchases of marketable securities (132,762) (100,971) Maturity of marketable securities 76,755 95,155 Investment of restricted funds - (1,460) Reduction of restricted funds 59 - Other - (26) ---------- ---------- Net cash used in investing activities (69,158) (7,944) ---------- ---------- Cash flows from financing activities: Reduction of long-term obligations (928) (680) Reduction of deferred revenue from sale of future contract receivables (3,444) (3,194) Payment of costs for financing and sale of future contract receivables - (89) Proceeds from forward sales 97,257 - Payment of costs for forward sale contract (249) - Proceeds from issuance of common stock 14 254 ---------- ---------- Net cash provided by (used in) financing activities 92,650 (3,709) ---------- ---------- Net increase (decrease) in cash and cash equivalents 29,169 (7,086) Cash and cash equivalents at beginning of period 11,576 10,812 ---------- ---------- Cash and cash equivalents at end of period $ 40,745 $ 3,726 ========== ==========
See accompanying notes to consolidated condensed financial statements. -6- 7 CRYSTAL OIL COMPANY CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (Continued) (In Thousands) (Unaudited) Supplemental disclosures of cash flow information:
Nine Months Ended September 30 -------------------- 1997 1996 --------- --------- Cash paid during the period for: Interest, net of amounts capitalized $ 2,222 $ 2,348 ========= ========= Amortization of discount on sale of future contract receivables and forward sales $ 1,442 $ 1,171 ========= ========= Income taxes $ 578 $ 177 ========= =========
See accompanying notes to consolidated condensed financial statements. -7- 8 CRYSTAL OIL COMPANY NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (Unaudited) Note 1. Consolidated Condensed Financial Statements The consolidated condensed balance sheet of Crystal Oil Company and its subsidiaries (the "Company") as of September 30, 1997, and the consolidated condensed statements of operations for the three and nine months ended September 30, 1997 and 1996, and consolidated condensed statements of stockholders' equity and cash flows for the nine months ended September 30, 1997 and 1996, have been prepared by the Company without audit. In the opinion of management, all adjustments (which include only normal recurring adjustments) necessary to present fairly the financial position, results of operations, and cash flows for all periods presented have been made. There have been no changes in the accounting policies from those set forth in Note A of the Notes to Consolidated Financial Statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 1996. Note 2. Commitments and Contingencies The Company currently has outstanding approximately $320 thousand in standby letters of credit that relate to certain tax benefits transferred pursuant to safe harbor lease transactions and $1.5 million in an irrevocable letter of credit to support certain obligations with respect to the outstanding $36.5 million in Secured Guaranteed Notes Due 2005. The Company's obligations with respect to the letters of credit for the safe harbor lease transactions are secured by approximately $96 thousand in restricted marketable securities. For information with respect to various claims regarding environmental and other matters, see "Part II: Other Information - Item 1. Legal Proceedings". Note 3. Earnings Per Share Earnings per common share were computed by dividing net income by the weighted average number of shares of Common Stock outstanding during the periods presented. The Senior Preferred Stock, all classes of the Company's warrants and the stock options have been considered to be the equivalent of Common Stock for all periods presented; however, the Senior Preferred Stock and the stock options were not assumed converted in 1997 and 1996, because the dilution effect was less than 3%. No warrants were assumed converted during the periods presented because the effective exercise prices were greater than the average market price of the Common Stock. The Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 128 ("SFAS 128"), Earnings per Share, in February 1997. SFAS 128 is effective for periods ending after December 15, 1997. SFAS 128 establishes standards for computing and presenting earnings per share and supersedes the standards currently used for computing earnings per share under the Accounting Principles Board -8- 9 Opinion No. 15, Earnings Per Share. After the effective date, any prior period earnings per share data in subsequent reports must be restated to conform to the new standard. The adoption of SFAS 128 will not have a significant effect on the Company's earnings per share as reported herein. Note 4. Property Acquisition On May 30, 1997, the Company consummated the acquisition of various proved producing and undeveloped reserves in the Bethany-Longstreet and Holly Fields in DeSoto Parish, Louisiana (the "DeSoto Properties") for a total cash purchase price of approximately $11.9 million, net of adjustments and related acquisition costs of approximately $256 thousand. The acquisition was effective on March 1, 1997, and in accordance with the "purchase method" of accounting, the results of operations of the acquired properties are included in the Company's consolidated statements of operations for the period commencing on May 30, 1997. In addition, the Company acquired the working interest of various owners in the DeSoto Properties effective on July 1, 1997, for approximately $436 thousand. During the quarter ended September 30, 1997, the Company incurred approximately $710 thousand in non-recurring expenses relating to an unsuccessful bid for certain crude oil and natural gas properties. These expenses have been included in general and administrative expense for the three and nine month periods ended September 30, 1997. Note 5. Crude Oil and Natural Gas Forward Sales On June 6, 1997, the Company entered into a natural gas forward sale of approximately 16.3 billion cubic feet ("Bcf") of natural gas to be delivered during the period of September 1997 through December 2002 at a discounted current cash price of approximately $27 million (the "June 1997 Forward Sale"). Under the June 1997 Forward Sale, the Company is obligated to deliver approximately .5 Bcf of natural gas during the fourth quarter of 1997 and between 2.2 Bcf and 4.2 Bcf of natural gas on an annual basis from 1998 through 2002. The natural gas sold can be delivered from the production of the DeSoto Properties or other properties and from other natural gas owned, developed or purchased in the future. The proceeds from the June 1997 Forward Sale are reflected for financial accounting purposes as deferred revenues and is recognized as deliveries are made by the Company based on an undiscounted reference price for the natural gas sold subject to adjustments for certain hedging arrangements entered into by the Company. The proceeds from the June 1997 Forward Sale were net of an imputed charge based on an 8.1% discount rate and reflected an undiscounted reference price for the natural gas sold that averaged $2.14 per MMbtu for 1997 and ranged between $1.88 and $2.34 per MMbtu for the years 1998 through 2002. The imputed charge used in establishing the sales price of the natural gas sold is being amortized over the life of the forward sale contract as the natural gas is delivered and recorded as amortization of discount on forward sales. On September 30, 1997, the Company effected a forward sale of approximately 16.4 Bcf of natural gas and 1.6 million barrels of crude oil to be delivered during 1998 at a discounted current cash price of approximately $70 million (the "September 1997 Forward Sale"). The September 1997 Forward Sale was entered in connection with the Company's ongoing acquisition program, in particular a significant crude oil and natural gas property acquisition that the Company was bidding for but -9- 10 unsuccessful in acquiring during the third quarter of 1997, as well as position the Company to take advantage of crude oil and natural gas trading opportunities. Under the terms of the September 1997 Forward Sale, the Company has the right to modify and extend the delivery schedule beyond 1998 under certain circumstances as it acquires additional producing properties, with the required delivery volumes to be adjusted for the extended schedule. The Company currently intends to satisfy its obligations under the September 1997 Forward Sale with a combination of its existing production and reserves and production from various properties which the Company is actively seeking to acquire as well as with crude oil and natural gas that may be purchased in the future. To limit the risk of price volatility with respect to properties and reserves to be acquired to satisfy the Company's delivery obligations under the September 1997 Forward Sale, the Company has entered into various commodity hedging arrangements covering the crude oil and natural gas to be delivered in 1998. The proceeds from the September 1997 Forward Sale will be recognized by the Company as deliveries are made. The Company will also recognize a charge of approximately $3.8 million over the period of the current delivery schedule for the amortization of the discount on the undiscounted reference prices of the crude oil and natural gas sold. The June 1997 Forward Sale and September 1997 Forward Sale resulted in the Company recognizing approximately $97 million in taxable income. The Company, however, was able to utilize a portion of its net operating loss carryforwards against a substantial portion of such taxable income. The use of the Company's net operating loss tax carryforwards for these transactions also resulted in an increase in stockholders' equity and net deferred tax assets of approximately $19 million. Because the net operating loss tax carryforwards related to periods prior to the Company's quasi-reorganization in 1986, the Company recognized no income as a result of its use of its net operating loss tax carryforwards. The valuation allowance for deferred tax assets was reduced by approximately $19 million based upon projections for future taxable income over the periods which the deferred tax assets can be realized as management believes it is more likely than not that the Company will realize the benefit of these deductible differences. Note 6. Commodity Swap Contract The Company has entered into hedging arrangements for the purpose of hedging against the volatility in prices of crude oil and natural gas in the event the Company is unable to deliver enough volumes of natural gas from its existing production or acquire producing crude oil and natural gas properties to fully satisfy its obligations under the June 1997 Forward Sale and September 1997 Forward Sale (the "Forward Sales") and is therefore required to purchase crude oil and natural gas to satisfy these obligations. These hedges are designated to limit any potential losses that the Company could incur on the purchase of crude oil and natural gas at prices higher than the prices used in the Forward Sales to fulfill its obligations under the contracts relating thereto to the extent its available production at the scheduled delivery date is less than the amounts required to be delivered. Under these hedging arrangements, the Company will either be entitled to receive or be required to pay an amount of cash equal to the difference between a scheduled price stated in the hedging contracts and a reference price per barrel of crude oil or per MMbtu of natural gas multiplied by the schedule of volumes hedged. These -10- 11 hedge contracts are derivative financial instruments and do not require deliveries of the commodity hedged. In connection with the June 1997 Forward Sale, the Company entered into a hedge contract for the purchase of .2 Bcf of natural gas at an average monthly price of $2.18 per MMbtu during the fourth quarter of 1997. In subsequent years, this hedge contract covers purchases between .7 Bcf and 1.8 Bcf of natural gas on an annual basis from 1998 to 2002 at monthly prices ranging from $1.89 to $2.35 per MMbtu. These volumes of natural gas represent approximately 40% of the Company's commitment for delivery under the initial sale contract. In connection with the September 1997 Forward Sale, the Company entered into a hedge contract covering 16.4 Bcf of natural gas and 1.6 million barrels of crude oil during the year 1998 at prices ranging from $2.27 to $3.12 per MMbtu of natural gas and from $20.26 to $21.21 per barrel of crude oil. The hedged volumes under this contract cover all the Company's commitment for delivery under the September 1997 Forward Sale. In addition, the Company has purchased an option to acquire a hedge position with respect to crude oil to be delivered in 1998 and which is designed to limit the risk for the Company if the Company exercises its right to extend the delivery schedule under the September 1997 Forward Sale. The gains or losses on the Company hedge contracts will be recognized as deliveries are made by the Company. Risks associated with the Company's hedge contracts arise primarily from the possible inability of the counterparties to meet their obligations under these contracts. The obligations of the counterparty's to the Company's existing hedge contracts are with a major investment grade financial institution or secured through an irrevocable letter of credit. The cash flows from future contracts are accounted for as hedges for sales of production and are classified as operating activities in the consolidated statements of cash flows. -11- 12 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations General The following is provided to assist in a further understanding of the Company's financial condition as of September 30, 1997, as well as changes in the Company's operating results. The notes to the Company's Consolidated Condensed Financial Statements included in this report, as well as the Company's Annual Report on Form 10-K for the year ended December 31, 1996, should be read in conjunction with this discussion. The Company currently owns and operates through a wholly-owned subsidiary, First Reserve Gas Company ("FRGC"), a natural gas storage facility located near Hattiesburg, Mississippi (the "Hattiesburg Facility") and holds various interests in crude oil and natural gas properties in Mississippi, Texas and Louisiana. Corporate Strategy The Company's corporate strategy is to grow through the utilization of the Company's available cash resources for acquisitions of income producing assets and properties and assets with potential for capital appreciation. To date, acquisitions have been in energy related business that can be acquired at attractive prices and operated by the Company without the addition of substantial corporate overhead and administrative expenses such as the Company's 1995 acquisition of FRGC and most recently of proved producing crude oil and natural gas properties such as the DeSoto Properties described below. In furtherance of the Company's acquisition strategy, the Company effected three significant transactions during the first nine months of 1997. The first transaction was the acquisition of proved producing and undeveloped properties in the Bethany Longstreet and Holly Fields in DeSoto Parish, Louisiana (the "DeSoto Properties") for approximately $11.9 million. The second transaction was a forward sell in June 1997 of 16.3 billion cubic feet ("BCF") of natural gas to be delivered from September 1997 through December 2002 for approximately $27 million (the "June 1997 Forward Sale"). The third transaction was a forward sale in September 1997 of 16.4 Bcf of natural gas and 1.6 million barrels of crude oil to be delivered during 1998 for approximately $70 million (the "September 1997 Forward Sale"). The acquisition of the DeSoto Properties added over 28 Bcf of proved natural gas reserves and 38 thousand barrels of condensate to the Company's reserves. The Company contemplates drilling approximately 20 wells in the fields over the next three years, of which two wells commenced drilling during the third quarter of this year, to supplement the existing 16 producing wells. The June 1997 Forward Sale was effected as a means of providing the Company with current value from the DeSoto Properties and to fund the development of the properties and the acquisition of new properties. Under the June 1997 Forward Sale, the Company is obligated to deliver approximately .5 Bcf of natural gas during the fourth quarter of 1997 and between 2.2 Bcf and 4.2 Bcf of natural gas on an annual basis from 1998 through 2002. The natural gas sold can be delivered from the production -12- 13 of the DeSoto Properties or other properties and from other natural gas owned, developed or purchased in the future. The September 1997 Forward Sale was also effected to further the Company's acquisition strategy. In particular, the September 1997 Forward Sale was effected in contemplation of a significant purchase of proved crude oil and natural gas properties which the Company bid on in October 1997 and was unsuccessful in acquiring. The September 1997 Forward Sale was also intended to facilitate other significant property acquisitions that the Company was and is reviewing if the Company was unsuccessful in its October bid. The September 1997 Forward Sale also provides the Company with the ability to take advantage of crude oil and natural gas trading opportunities by fixing prices of the volumes sold. Under the terms of the September 1997 Forward Sale, the Company has the right to modify and extend the delivery schedule beyond 1998 under certain circumstances as it acquires additional producing properties, with the required delivery volume to be adjusted for the extended schedule. The Company currently intends to satisfy its obligations under the September 1997 Forward Sale with a combination of its existing production and reserves and production from various properties which the Company is actively seeking to acquire as well as with crude oil and natural gas that may be purchased in the future. To limit the risk of price volatility with respect to properties and reserves to be acquired to satisfy the Company's delivery obligation under the September 1997 Forward Sale, the Company has entered into various commodity hedging arrangements covering the crude oil and natural gas to be delivered in 1998. The proceeds from the September 1997 Forward Sale will be recognized by the Company as deliveries are made. The Company will also recognize a charge of approximately $3.8 million over the period of the current delivery schedule for the amortization of the discount on the undiscounted reference prices of the crude oil and natural gas sold. The Company is also continuing to review additional acquisition opportunities with a focus on acquisitions that will maximize the return on the Company's existing capital resources and benefit from the availability of the Company's large net operating loss carryforwards and other tax benefits. Under the Company's acquisition strategy, the Company has and expects to continue reviewing acquisitions in the energy industry as well as other potential acquisition opportunities in other businesses or industries. As of September 30, 1997, the Company's financial resources included $150 million in cash, cash equivalents and marketable securities that could be utilized for future acquisitions. Approximately $70 million of such marketable securities are dedicated to acquisitions of crude oil and natural gas properties as well as purchases of crude oil and natural gas if necessary. The Company's only material debt consists of the indebtedness directly associated with the permanent financing for the acquisition of FRGC in 1995 and the recourse of which is primarily limited to FRGC and the assets and operations of the Hattiesburg Facility. The Company also has ongoing performance obligations with respect to the Hattiesburg Facility and with respect to its delivery obligations under its forward sale contracts. Future acquisitions will likely involve a combination of the use of a portion of the Company's available cash and debt or other financing. To the extent possible, the Company will seek to limit the recourse of any financing to the business and assets acquired. The Company may also seek to finance future acquisitions with additional equity, if desirable. -13- 14 Results of Operations General The Company recorded net income for the three and nine month periods ended September 30, 1997, of $163 thousand, $.06 per share, and $1.5 million, $.55 per share, respectively, compared to net income of $626 thousand, $.23 per share, and $1.9 million, $.72 per share, respectively, for the comparative periods in 1996. The results for the three and nine month periods ended September 30, 1997, were adversely affected by non-recurring expenses totaling $710 thousand for the unsuccessful acquisition bid in certain crude oil and natural gas properties during the third quarter of 1997. This expenditure was recorded as a general and administrative expense. Absent this charge, net income for the three and nine months ended September 30, 1997, would have been $596 thousand, $.22 per share, and $1.9 million, $.72 per share, respectively. Income for the periods ended September 30, 1997 and 1996, were primarily derived from natural gas storage activities, interest and investment income on the Company's available cash and sales of crude oil and natural gas production. As a result of the acquisition and development activities of the DeSoto Properties, sales of natural gas production are expected to increase substantially in future periods. Further, to the extent the Company is unsuccessful in acquiring producing properties sufficient to satisfy the Company's obligations under the September 1997 Forward Sale and is therefore required to purchase crude oil and natural gas to satisfy those obligations, the Company's income will be adversely affected by the amortization of the $3.8 million discount on the crude oil and natural gas sold. Such expense, however, is expected to be substantially offset by an increase in interest income, pending the use of funds from the forward sale. The Company is actively reviewing potential property acquisition that would allow it to reschedule its delivery obligations over a longer period and reduce the need to acquire crude oil and natural gas to satisfy its obligations. Further, because of hedging contracts entered into in connection with the September 1997 Forward Sale, the Company does not expect to incur any significant loss on any purchases of crude oil and natural gas to satisfy its delivery obligations beyond the amortization charge and may recognize gains from the hedges if the delivery schedule is extended due to property acquisitions. Natural Gas Storage The Company's natural gas storage activities for the three and nine month periods ended September 30, 1997, provided revenues of $3.0 million and $9.3 million, respectively, and operating income of $2.0 million and $6.3 million, respectively. For the three and nine month periods ended September 30, 1996, natural gas storage activities contributed revenues of $3.1 million and $9.6 million, respectively, and operating income of $2.1 million and $6.5 million, respectively. Natural gas storage revenues derived from firm long-term contracts were $2.8 million and $8.3 million in each of the three and nine month periods ended September 30, 1997 and 1996. The remaining natural gas storage revenues for the three and nine month periods ended September 30, 1997 and 1996, were derived from winter and interruptible storage services, injection and withdrawal charges and other fees relating to services provided in connection with the storage and delivery of natural gas at the Hattiesburg Facility. Storage revenues -14- 15 for the nine month period ended September 30, 1997, reflected a lower demand for interruptible and winter storage due to milder weather conditions. The Company is actively marketing its interruptible storage services as well as pursuing joint venture and other arrangements with third parties to increase the utilization of the Hattiesburg Facility beyond the use for firm storage services. The Company is also reviewing additional storage and transportation opportunities. During the three and nine month periods ended September 30, 1997, the Company's operating income from natural gas storage activities reflected operational expenses of $290 thousand and $935 thousand, respectively, and depreciation and amortization of $690 thousand and $2.1 million, respectively. The Company's natural gas storage activities for the three and nine month periods ended September 30, 1996, included operational expenses of $344 thousand and $998 thousand, respectively, and depreciation and amortization of $693 thousand and $2.1 million, respectively. Crude Oil and Natural Gas Exploration and Production The Company's crude oil and natural gas exploration and production segment for the three and nine month periods ended September 30, 1997, provided revenues of $644 thousand and $1.2 million, respectively, and operating income of $203 thousand and $340 thousand, respectively. For the three and nine month periods ended September 30, 1996, the crude oil and natural gas exploration and production segment contributed revenues of $191 thousand and $527 thousand, respectively, and operating income of $102 thousand and $273 thousand, respectively. Crude oil and natural gas revenues resulted from the Company's limited drilling activities in late 1995 and 1996 and the Company's acquisition of the DeSoto Properties. During 1997, the Company's operating income from crude oil and natural gas production activities reflected the effect of increased revenues from additional natural gas production and increased operating expense and depletion expense primarily from the effect of the acquisition of the DeSoto Properties during the second quarter of 1997. Revenues and expenses from the Company's crude oil and natural gas exploration and production segment are expected to increase in future periods as a result of the acquisition and development activities of the DeSoto Properties. Interest and Investment Income The Company's interest and investment income for the three and nine month periods ended September 30, 1997, was approximately $1.0 million and $2.8 million, respectively. For the three and nine month periods ended September 30, 1996, the Company's interest and investment income was approximately $879 thousand and $2.6 million, respectively. The levels of interest and investment income reflected an average investment in debt securities of $61.1 million and $64.0 million for the nine month periods ended September 30, 1997 and 1996, respectively. The average interest rate received by the Company was 5.61% and 5.21% for the nine month periods ended September 30, 1997 and 1996, respectively. As of September 30, 1997, the level of funds available for additional investments in debt securities includes the proceeds of approximately $70 million received on September 30, 1997, from the forward sale effected during the third quarter of 1997. The Company's investments of its liquid assets are primarily invested in investment grade corporate and government obligations that are for terms of less than two years. -15- 16 Depreciation, Depletion and Amortization Depreciation, depletion and amortization increased in the three and nine month periods ended September 30, 1997, to $986 thousand and $2.8 million, respectively, from $800 thousand and $2.4 million, respectively, for the comparative periods in 1996. The increase was primarily attributable to increases in the volumes of natural gas production and the depletion rate per net equivalent barrel of production. Depreciation, depletion and amortization will also increase in future periods as a result of the acquisition and development activities of the DeSoto Properties and any other properties that may be acquired. Interest and Debt Expense The Company's interest and debt expense for the three and nine month periods ended September 30, 1997, was $832 thousand and $2.4 million, respectively, and $809 thousand and $2.5 million, respectively, for the comparative periods in 1996. Such interest and debt expense related primarily to the $36.5 million of long-term debt incurred to finance the acquisition of FRGC. Amortization of Discount on Sale of Future Contract Receivables and Forward Sales For the three and nine month periods ended September 30, 1997, the Company recorded an expense of approximately $686 thousand and $1.4 million, respectively, primarily for the amortization of discount on its prior sale of future fixed contract receivables to be generated from firm gas storage services and the amortization of discount on the June 1997 Forward Sale. This expense reflects the amortization of the discount of such contract receivables through June 30, 2000, the date through which the receivables were sold, and the amortization of discount on the natural gas forward sale through December 31, 2002, under the interest method. In addition as described above, the amortization of discount on forward sales is expected to substantially increase in future periods as a result of the September 1997 Forward Sale. The amortization of discount on sale of future contract receivables was approximately $371 thousand and $1.2 million for the three and nine month periods ended September 30, 1996. General and Administrative Expense The Company's general and administrative expense for the three and nine month periods ended September 30, 1997, was approximately $1.3 million and $2.6 million, respectively, compared to approximately $715 thousand and $2.2 million, respectively, for the comparative periods in 1996. The increase in general and administrative expense resulted primarily from non-recurring expenses totaling $710 thousand relating to an unsuccessful bid for certain crude oil and natural gas properties during the third quarter of 1997. The acquisition of the DeSoto Properties did not result in any significant increase in general and administrative expense due to the consolidation of the acquired operations with its ongoing exploration and production activities. -16- 17 Provision for Income Taxes The results for the three and nine month periods ended September 30, 1997, included a provision for income taxes of $104 thousand and $945 thousand, respectively, and $405 thousand and $1.2 million, respectively, for the comparative periods in 1996. The Company's provision for income taxes for the three and nine month periods ended September 30, 1997, includes a deferred tax benefit and corresponding increase in deferred tax assets of approximately $1.8 million and $1.1 million, respectively, and a deferred tax expense and reduction in deferred tax assets of $350 thousand and $1.1 million, respectively, for the comparative periods in 1996, as a result of an alternative minimum tax credit carryforward generated by the forward sale transactions in 1997 and the utilization of the Company's tax net operating loss carryforwards and other tax benefits in 1997 and 1996. The June 1997 Forward Sale and September 1997 Forward Sale resulted in the Company recognizing approximately $97 million in taxable income. The Company, however, was able to apply a portion of its net operating loss tax carryforwards against the tax that would otherwise have been paid. As a result, the Company recorded an increase in stockholders' equity and deferred tax assets of approximately $19 million, which represented the benefit realized from the use of the Company's net operating loss carryforwards. Because the net operating loss tax carryforwards related to periods prior to the Company's quasi-reorganization in 1986, the Company recognized no income as a result of its use of its net operating loss carryforwards. The valuation allowance for deferred tax assets was reduced by approximately $19 million based upon projections for future taxable income over the periods which the deferred tax assets can be realized as management believes it is more likely than not that the Company will realize the benefit of these deductible differences. Liquidity and Capital Resources At September 30, 1997, the Company had cash and cash equivalents of approximately $41 million and marketable securities of approximately $109 million. Approximately $70 million of such marketable securities are dedicated to acquisitions of crude oil and natural gas properties as well as purchases of crude oil and natural gas if necessary. The Company also had approximately $1.9 million in restricted cash securing the Company's contingent obligations with respect to outstanding letters of credit and the previously sold future accounts receivable. In addition, the Company had no debt other than the debt directly associated with and recourse primarily limited to FRGC and the Hattiesburg Facility. As noted above, the Company has obligations to deliver 1.6 million barrels of crude oil and 32.7 Bcf of natural gas under the June 1997 Forward Sale and September 1997 Forward Sale in which the Company received a total of approximately $97 million from the sale of such crude oil and natural gas. The Company intends to satisfy these obligations through a combination of production from its existing properties and properties to be acquired as well as purchases of crude oil and natural gas if necessary. In this regard, the Company retained the right to reschedule deliveries under the September 1997 Forward Sale over an extended period if the Company acquires additional producing properties. The Company believes that the funds received by it from the June 1997 Forward Sale and September 1997 Forward Sale will be sufficient to fund acquisitions of -17- 18 properties and crude oil and natural gas to satisfy its obligations under these forward sales. The Company has entered into hedging arrangements for the purpose of hedging against the volatility in prices of crude oil and natural gas in the event the Company is unable to deliver enough volumes of natural gas from its existing production or acquire producing crude oil and natural gas properties to fully satisfy its obligations under the June 1997 Forward Sale and September 1997 Forward Sale (the "Forward Sales") and is therefore required to purchase crude oil and natural gas to satisfy these obligations. These hedges are designated to limit any potential losses that the Company could incur on the purchase of crude oil and natural gas at prices higher than the prices used in the Forward Sales to fulfill its obligations under the contracts relating thereto to the extent its available production at the scheduled delivery date is less than the amounts required to be delivered. Under these hedging arrangements, the Company will either be entitled to receive or be required to pay an amount of cash equal to the difference between a scheduled price stated in the hedging contracts and a reference price per barrel of crude oil or per MMbtu of natural gas multiplied by the schedule of volumes hedged. These hedge contracts are derivative financial instruments and do not require deliveries of the commodity hedged. In connection with the June 1997 Forward Sale, the Company entered into a hedge contract for the purchase of .2 Bcf of natural gas at an average monthly price of $2.18 per MMbtu during the fourth quarter of 1997. In subsequent years, this hedge contract covers purchases between .7 Bcf and 1.8 Bcf of natural gas on an annual basis from 1998 to 2002 at monthly prices ranging from $1.89 to $2.35 per MMbtu. These volumes of natural gas represent approximately 40% of the Company's commitment for delivery under the initial sale contract. In connection with the September 1997 Forward Sale, the Company entered into a hedge contract covering 16.4 Bcf of natural gas and 1.6 million barrels of crude oil during the year 1998 at prices ranging from $2.27 to $3.12 per MMbtu of natural gas and from $20.26 to $21.21 per barrel of crude oil. The hedged volumes under this contract cover all the Company's commitment for delivery under the September 1997 Forward Sale. In addition, the Company has purchased an option to acquire a hedge position with respect to crude oil to be delivered in 1998 and which is designed to limit the risk to the Company if the Company exercises its right to extend the delivery schedule under the September 1997 Forward Sale. The gains or losses on the Company's hedge contracts will be recognized as deliveries are made by the Company. Risks associated with the Company's hedge contracts arise primarily from the possible inability of the counterparties to meet their obligations under these contracts. The obligations of the counterparty's to the Company's existing hedge contracts are with a major investment grade financial institution or secured through an irrevocable letter of credit. The cash flows from future contracts are accounted for as hedges for sales of production and are classified as operating activities in the consolidated statements of cash flows. At June 30, 1997, the Company had outstanding approximately $36.5 million in 8.12% Secured Guaranteed Notes Due 2005 (the "Notes") requiring payment of interest only through June 30, 2000, at which time -18- 19 principal is to be amortized over the remaining life of the Notes. At September 30, 1997, the Company also had approximately $14.4 million in deferred revenue from the sale of future contract receivables that is being recognized for accounting purposes through June 30, 2000, which represents the period that such receivables are to be generated from the operation of the Hattiesburg Facility. During the nine month period ended September 30, 1997, the Company recognized approximately $8.3 million of revenue from the previously sold receivables. The Notes and obligations under the agreement pursuant to which the Company sold the future accounts receivable are secured by substantially all of the assets of FRGC and its subsidiaries and are without recourse to Crystal Oil Company, except for certain amounts in the event of bankruptcy of FRGC and its subsidiaries. As of September 30, 1997, restricted funds of approximately $1.8 million, consisting of distributions from the trust that acquired the receivables, had been pledged to secure the obligations with respect to the previously sold receivables. In addition, the Company currently has outstanding $1.5 million in an irrevocable letter of credit to support certain obligations with respect to the Notes. The Company's working capital position increased by approximately $13 million to approximately $75 million at September 30, 1997, from approximately $62 million at December 31, 1996, primarily as a result of the effect of the June 1997 Forward Sale net of the funds required for the acquisition of the DeSoto Properties. The Company generated net cash flow from operating activities of approximately $5.7 million and $4.6 million for the nine month periods ended September 30, 1997 and 1996, respectively. Pending the redeployment of the Company's available funds, the Company is investing its cash primarily in United States government and other investment grade securities. The Company believes that these securities do not present any material risks with respect to the Company's liquidity, operations or financial position. Other Matters The Company is currently subject to various claims regarding environmental matters, which will require the expenditure of funds for legal costs and could require additional expenditure of funds for remediation if it is determined that the Company is responsible for such remediation or otherwise agrees to contribute to the cost of such remediation. It is the Company's policy to accrue for environmental remediation costs if it is probable that a liability has been incurred and an amount is reasonably estimable. The resolution of the known environmental matters affecting the Company will be subject to various factors, including the discovery of additional information with respect to the nature of contamination at the known sites, the legal responsibility of various parties for any cleanup obligations, the financial capability of responsible parties and other actions by governmental agencies and private parties. Although the cost of cleanup of sites in which the Company has been notified of potential liability is currently estimated to involve the expenditure of funds by all potentially responsible parties in excess of $9 million, based on information known to the Company, the Company does not believe that its ultimate payment obligations with respect to such matters will have a material adverse impact on the Company's financial position. -19- 20 Forward Looking Statements Statements in this Report other than historical facts are forward-looking statements made in reliance upon the safe harbor of the Private Securities Litigation Reform Act of 1995. As such, the involved risk and uncertainties are subject to change at any time. The Company derives its forward-looking statements from its operating budgets which are based on various assumptions, including matters regarding crude oil and natural gas prices, demand and supply for crude oil and natural gas, changes in the market for natural gas storage and transportation, the ultimate recovery and realization of the estimated reserves from the proved producing and undeveloped reserves in the DeSoto Properties, success of the Company's ability to market interruptible service at the Hattiesburg Facility, the use of the Company's existing net operating tax loss carryforwards, the Company's successful execution of its acquisition strategy and internal operating plans, labor relations, regulatory uncertainties and legal proceedings, in particular its pending litigation with the State of Louisiana and the State of Indiana regarding environmental matters. Although the Company believes its assumptions are reasonable, it is impossible to predict the impact of certain factors that could cause actual results to differ materially from those currently anticipated. These factors are discussed in the Company's filings with the Securities and Exchange Commission, in particular its most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission. -20- 21 PART II: OTHER INFORMATION Item 1. Legal Proceedings In 1995, an agency of the State of Louisiana notified the Company that the Company had potential liability under a Louisiana environmental act on account of certain activity while the Company was "owner/operator and/or owner" of a particular facility located in Louisiana from 1926 until 1935. This property had been sold by the Company in 1935. Under state court proceedings, the State of Louisiana is seeking $4.5 million from all potentially responsible parties. In April 1996, the Company filed a petition to reopen the Company's 1986 bankruptcy proceeding (the "Bankruptcy Proceeding") for the sole purpose of enforcing the previous confirmation order and other orders in the Bankruptcy Proceeding with the objective of establishing that this claim by the State of Louisiana is barred by the discharge in the Bankruptcy Proceeding and can no longer be brought against the Company. However, on August 29, 1997, the Bankruptcy Court held that the State of Louisiana's claim against the Company was not barred by the Bankruptcy Proceeding. Consequently, the State of Louisiana has filed a motion with the First Judicial District Court, Caddo Parish, Louisiana, to include the Company as a defendant in the state court proceedings. The Company also referred to the Bankruptcy Court an environmental claim from another agency of the State of Louisiana concerning the environmental remediation in a 30 acre tract of land that the Company previously owned and on which a fuel oil refinery was operated from 1920 until 1940. In October 1996, the Bankruptcy Court entered an order barring the State of Louisiana from asserting claims against the Company concerning the fuel oil refinery site on the grounds that such claims had accrued prior to the Bankruptcy Proceeding. This order was affirmed by the United States District Court for the Western District of Louisiana. On April 9, 1997, the State of Louisiana proceeded to appeal the District Court's decision to the United States Court of Appeals for the Fifth Circuit, where the matter is currently pending. In 1991, the Company was named, among others, as a potentially responsible party ("PRP") for environmental clean-up by an agency of the State of Indiana and received an informational request concerning the Company's activities at a site located in Indiana. A now dissolved subsidiary of the Company owned a refinery on this site for a period of approximately four years during the 1970s. Except for such period, other parties have owned and engaged in operations on this site since the construction of the refinery in 1946. In 1996, the State of Indiana brought an action against the Company and others to recover approximately $1.8 million in remediation costs that was alleged to have been incurred by it from 1990 through 1994 for the environmental clean-up of this site. The Company has referred this claim to the Bankruptcy Court for the Western District of Louisiana on the basis that such claim is barred as a result of the Bankruptcy Proceeding. On September 29, 1997, the Company and the State of Indiana filed a joint motion in the Bankruptcy Court for the approval of a compromise between the parties and for an order barring all related claims from other parties against the Company. A hearing with the judge is currently scheduled for December 1, 1997. In light of the claims by the State of Louisiana and the State of Indiana, the Company accrued an additional $1.0 million during the second -21- 22 quarter of 1997 for defense and other related costs of such matters. Because the foregoing matters relate to matters existing prior to the Company's quasi-reorganization in 1986, this accrual was recorded net of related tax impact as an offset to additional paid-in capital. In another environmental matter, the Company is among a number of defendants in a suit pending in the 14th District Court in Calcasieu Parish, Louisiana, by the H. C. Drew Estate for remediation of alleged saltwater damage and pit cleanup at a drilling location near Lake Charles, Louisiana, in which the plaintiff asserts that the Company has a 25% working interest ownership in a leasehold interest relating to the location. Reunion Energy ("Reunion") is the operator at the site and primarily responsible for the cleanup of the site under the terms of the Company's operating agreement with Reunion. The Company, however, may be responsible under the operating agreement for its pro rata share of certain cleanup costs. The amount of the plaintiff's claim is presently not known. The plaintiff, however, has estimated an environmental cleanup cost of $3.0 million based on the process of removing and replacing the soil at the site. Reunion had advised the Company that it believes that the plaintiff's proposed cleanup is neither required under the operating agreement or by law. Reunion has proposed to follow the environmental remediation requirements under the regulations of the State of Louisiana that would require surface remediation through the treatment of salt water contamination at a cost that would be expected to be substantially less than the amount under the plaintiff's proposal. Reunion's proposal has been referred to the Office of Conservation of the Louisiana Department of Natural Resources for a determination. Presently, the Company is investigating this matter. Based on information currently known to the Company, the Company does not expect that the resolution of this matter will have a material adverse effect on its financial condition and results of operations. In July 1979, a suit styled "AGB Oil Company et al vs. The Charter Company, Charter Oil Company, and Crystal Exploration and Production Company", was filed in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. The plaintiff is the limited partner of Caloosa 1974 Limited Partnership, a Colorado limited partnership, of which a subsidiary of the Company, Crystal Exploration and Production Company (formerly Charter Exploration and Production Company), is the general partner. The plaintiff claims compensatory damages of $10 million, punitive damages in an undetermined amount, interest and costs of litigation. The suit alleges breach of contract, breach of fiduciary duty, mismanagement and fraud in connection with the operation of Caloosa 1974 Limited Partnership. In recent years, the suit has been generally inactive. However, in 1996 the plaintiff amended its complaint and added Crystal Oil Company as a defendant to the lawsuit. In response, the Company referred this claim to the Bankruptcy Court for the Western District of Louisiana based on the consideration that such claim was barred as a result of the Bankruptcy Proceeding. The Company and plaintiff agreed to a stay through December 31, 1997, as extended, with respect to the proceedings in Bankruptcy Court pending the results of a mediation process between the parties. The Company will continue the proceedings in Bankruptcy Court if the mediation process between the parties fails to provide satisfactory results. The Company does not believe that a recovery by plaintiff of a material amount is likely. -22- 23 Item 6. Exhibits and Reports on Form 8-K (a) Exhibits *10.1 Crude Oil and Natural Gas Forward Sale Contracts dated September 30, 1997, between Crystal Properties and Trading Company and Mahonia Limited. *10.2 Guaranty Agreement dated September 30, 1997, between Crystal Oil Company and Mahonia Limited. *11 Computation of Earnings Per Common Share. 27 Financial Data Schedule (b) Reports on Form 8-K None - --------------------- * Filed herein -23- 24 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on the 10th day of November 1997. CRYSTAL OIL COMPANY BY: /S/ J. N. AVERETT, JR. ------------------------------------ J. N. Averett, Jr. President and Director (Principal Executive Officer) BY: /S/ J. A. BALLEW ------------------------------------ J. A. Ballew Senior Vice President, Treasurer, and Chief Financial Officer BY: /S/ PAUL E. HOLMES ------------------------------------ Paul E. Holmes Vice President/Controller (Principal Accounting Officer) -24- EX-10.1 2 CRUDE OIL & NATURAL GAS FORWARD SALE CONTRACTS 1 EXHIBIT 10.1 CRUDE OIL FORWARD SALE CONTRACT DATED SEPTEMBER 30, 1997 BETWEEN CRYSTAL PROPERTIES AND TRADING COMPANY AND MAHONIA LIMITED 2 TABLE OF CONTENTS ARTICLE I - INTERPRETATION Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1.02 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1.03 Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1.04 Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE II - SALE AND PURCHASE OF CRUDE OIL Section 2.01 Sale and Purchase of Crude Oil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 2.02 Measurement and Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2.03 Delivery of Crude Oil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 2.04 Payment of Delivery Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 2.05 Default Delivery Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 2.06 Failure of Delivery or Receipt; Transportation and Balancing . . . . . . . . . . . . . . . . 8 Section 2.07 Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.08 Possession, Title and Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.09 Royalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 2.11 No Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE III - REPRESENTATIONS AND WARRANTIES Section 3.01 Representations and Warranties of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 3.02 Representations and Warranties of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE IV - COVENANTS Section 4.01 Affirmative Covenants of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE V - EVENTS OF DEFAULT AND EARLY TERMINATION Section 5.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 5.02 Early Termination by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 5.03 Calculation of Termination Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE VI - EVENTS OF CHANGE AND ACCELERATED TERMINATION Section 6.01 Events of Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 6.02 Accelerated Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 6.03 Payments on Accelerated Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARTICLE VII - MISCELLANEOUS Section 7.01 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 7.02 Interest on Overdue Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.03 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.04 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.05 Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.06 Purchaser Not an Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
i 3 Section 7.07 Benefit of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.08 Assignment and Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.09 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.10 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.11 No Waivers, Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.12 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 7.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 7.14 Margin Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 7.15 Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 7.16 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Annex 1 Seller's Conditions Precedent Exhibit A - Form of Opinion of Counsel of Guarantor ii 4 CRUDE OIL FORWARD SALE CONTRACT This CRUDE OIL FORWARD SALE CONTRACT (this "Agreement") is entered into as of September 30, 1997, between CRYSTAL PROPERTIES AND TRADING COMPANY, a corporation organized under the laws of the State of Nevada (the "Seller"), and MAHONIA LIMITED, a company incorporated under the laws of Jersey (the "Purchaser"). WHEREAS, Seller is proposing to acquire interests in various oil and natural gas properties located in Kern County, California, known as the Elk Hills Naval Petroleum Reserve Numbered 1 (the "Elk Hills Properties"), as well as other proved producing oil and gas properties located in the United States; and WHEREAS, Seller desires to sell and Purchaser desires to purchase certain quantities of Crude Oil (as hereafter defined) on the terms and conditions set forth herein; NOW THEREFORE, in consideration of the respective covenants and agreements of the parties hereinafter set forth and for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties hereby agree as follows: ARTICLE I - INTERPRETATION Section 1.01 Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated: "Accelerated Termination Date" shall have the meaning ascribed thereto in Section 6.02(b). "Applicable Instruments" of any Person shall mean the Certificate or Articles of Incorporation, by-laws and other organizational documents of such Person and all contracts, indentures, agreements, instruments and documents to which such Person is a party or by which such Person or any assets of such Person may be bound or affected. "Barrel" means one United States barrel (42 United States gallons at 60 degrees Fahrenheit). "Business Day" means a day, other than a Saturday or a Sunday, on which commercial banks are not authorized or required to be closed in New York, New York. "Confirmation Letter" has the meaning ascribed thereto in Section 2.01. "Crude Oil" means domestic light "sweet" crude oil meeting the specifications of the Arco pipeline facilities at Cushing, Oklahoma. "Deficiency Quantity" means in respect of a particular Delivery Month the amount by which the Required Delivery Quantity of Crude Oil for that Delivery Month exceeds the quantity of Crude Oil actually delivered and received hereunder in respect of such Delivery Month. 1 5 "Delivery Location" means Arco's pipeline facilities at Cushing, Oklahoma. "Delivery Month" means each calendar month commencing with the month of January, 1998, through and including the month of December, 1998. "Early Termination Date" shall have the meaning ascribed thereto in Section 5.02. "Event of Change" shall have the meaning ascribed thereto in Section 6.01. "Event of Default" shall have the meaning ascribed thereto in Section 5.01. "Federal Funds Rate" means, for any day, a fluctuating interest rate per annum equal for such day to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Purchaser from three Federal funds brokers of recognized standing selected by Purchaser. "Force Majeure" shall mean a failure by either party to perform obligations hereunder, except for the obligation to make payment due hereunder, to the extent that such failure is caused by war, riots, insurrections, fires, explosions, sabotage, strikes and other labor or industrial disturbances, acts of God or the elements, government laws, regulations or requests, disruption or breakdown of production or transportation facilities, delays of pipeline carriers in receiving and delivering crude oil tendered, or by any other cause reasonably beyond the control of such party, but does not include the failure to perform obligations solely as a result of the fact that to do so will result in economic loss or hardship to such party. "Gas Contract Event of Default" shall mean any Event of Default, as such term is defined in the Gas Forward Sale Contract. "Gas Forward Sale Contract" shall mean that certain Natural Gas Forward Sale Contract between Seller and Purchaser of even date herewith. "Governmental Requirement" shall mean all judgments, orders, writs, injunctions, decrees, awards, laws, ordinances, statutes, regulations, rules, franchises, permits, certificates, licenses, authorizations and the like of any government or any commission, board, court, agency, instrumentality or political subdivision thereof. "Guarantor" shall mean Crystal Oil Company, a Louisiana corporation. "Guaranty Agreement" shall mean that certain Guaranty Agreement dated of even date herewith by Guarantor, in favor of Purchaser. 2 6 "Margin Agreement" means the Margin Agreement of even date herewith between Seller and Purchaser, as the same may be modified or amended from time to time. "NYMEX" means the New York Mercantile Exchange, Inc. and any successor thereto by merger, consolidation, or sale of assets. "Payment Date" shall mean the 20th day of each month (or if such day is not a Business Day, the next succeeding Business Day, commencing on February 20, 1998. "Person" shall mean any individual, corporation, company, partnership, joint venture, trust, unincorporated association, government or any commission, board, court, agency, instrumentality or political subdivision thereof, any other entity or any trustee, receiver, custodian or similar official. "Prepaid Price" shall be the amount set forth in the Confirmation Letter. "Reference Dealer" means a leading company in the crude oil marketing business selected by Purchaser in good faith from among companies whose credit standings satisfy all the criteria that Purchaser applies generally with respect to transactions similar to those contemplated by this Agreement. "Replacement Value" means (i) if Seller is the party which has failed to perform, the price which Purchaser, acting in good faith and at arm's length, actually pays, or has contracted to pay, for Crude Oil to replace the Deficiency Quantity at the agreed Delivery Location plus any additional transportation and other costs and expenses incurred by Purchaser in connection with the purchase of such Crude Oil, and (ii) if Purchaser is the party which has failed to perform, the price which Seller, acting in good faith and at arm's length, actually receives, or has contracted to receive, for the sale of the Deficiency Quantity of Crude Oil less any additional transportation and other costs and expenses incurred by Seller in connection with the sale of such Crude Oil. "Required Delivery Quantity" means the number of Barrels of Crude Oil to be delivered and received during a given Delivery Month pursuant to this Agreement as agreed upon in the Confirmation Letter. "Taxes" means all ad valorem, property, occupation, severance, production, gathering, pipeline, utility, gross production, sales, use, excise, transaction and any other governmental charges and assessments, other than taxes based on net income or net worth. "Termination Date" means either the Accelerated Termination Date or the Early Termination Date, as the case may be. "Termination Payment" shall have the meaning given such term in Section 5.03. 3 7 "United States Dollars", "U.S. Dollars", or "U.S. $" means the lawful currency of the United States of America in immediately available funds. "Unpaid Amounts" means, with respect to any Termination Date, the aggregate of the amounts that became payable (whether or not due) to Purchaser hereunder prior to the occurrence of such Termination Date and that remain payable (whether or not due) as at such Termination Date, together with interest thereon from (and including) the date such amounts became due and payable to (but excluding) such Termination Date at the U.S. Base Rate. "U.S. Base Rate" means, at any time, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall at all times be equal to the highest of: (a) the rate of interest announced publicly by The Chase Manhattan Bank in New York, New York, from time to time, as its prime commercial lending rate; or (b) one percent per annum above the Federal Funds Rate in effect from time to time. In the event there is any Unpaid Amount, Purchaser will use reasonable efforts to inform Seller of changes in the U.S. Base Rate promptly upon the occurrence of such changes. Section 1.02 Headings. The division of this Agreement into Articles and Sections and the insertion of an index and headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms "this Agreement", "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular Article, Section, paragraph, Schedule or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles, Sections and paragraphs are to Articles, Sections and paragraphs of this Agreement. Section 1.03 Number. Words importing the singular number shall include the plural and vice versa, and words importing the masculine gender shall include the feminine and neuter genders and vice versa. Section 1.04 Non-Business Days. Whenever any action to be taken hereunder shall be stated to be required to be taken or any payment to be made hereunder shall be stated to be due on a day other than a Business Day, unless otherwise specifically provided for herein, such payment shall be made or such action shall be taken on the next succeeding Business Day if the due date was a Sunday or a NYMEX or New York bank holiday which occurs on a Monday or on the last preceding Business Day if the due date was a Saturday or a NYMEX or New York bank holiday other than a Monday, and in the case of the payment of any monetary amount, the extension or curtailment of time shall be taken into account for the purposes of computation of interest or fees thereon. ARTICLE II - SALE AND PURCHASE OF CRUDE OIL Section 2.01 Sale and Purchase of Crude Oil. (a) On or before September 30, 1997, Purchaser and Seller shall agree upon and execute a letter described in this Section 2.01 (such letter being the "Confirmation Letter"). The Confirmation Letter shall specify a mutually acceptable Prepaid Price (which shall be approximately U.S. 4 8 $35,000,000) the date or dates on which the Prepaid Price shall be paid (which shall not be later than September 30, 1997), and for each Delivery Month, Required Delivery Quantity, and the proportion thereof to be delivered and received at each Delivery Location, each as mutually agreed by Purchaser and Seller. On the date or dates specified for such purpose in the Confirmation Letter, Purchaser shall pay to Seller the Prepaid Price by wire transfer of immediately available funds to such account or accounts as Seller may designated in writing, provided that the conditions precedent set out in Annex 1 have been satisfied by Seller and no Event of Default or Event of Change shall have occurred. (b) In consideration of the payment to Seller of the Prepaid Price, Seller hereby agrees to sell and deliver, or cause to be delivered to Purchaser, via in line transfer at the Delivery Location in each Delivery Month, the Required Delivery Quantity of Crude Oil on the terms and conditions set forth in this Agreement, and Purchaser hereby agrees to accept delivery of such Crude Oil. Payment of the Prepaid Price shall constitute payment in full of the purchase price of the Crude Oil to be delivered hereunder. (c) Seller has advised Purchaser that Seller intends to satisfy its obligations under this Agreement from various oil and gas interests that it anticipates acquiring either through the acquisition of properties, such as the Elk Hills Properties, or through the future acquisition of Crude Oil that may be owned or acquired by one or more affiliates of Seller or from third parties. Seller has further advised Purchaser that if Seller is successful in acquiring interests in the Elk Hills Properties, its reserves and deliverable volumes of Crude Oil will increase substantially. In recognition of these facts, Purchaser and Seller have agreed that the initial Confirmation Letter will contemplate a delivery schedule without giving effect to Seller's acquisition of any interests in the Elk Hills Properties or other similar proved oil and gas properties. Seller has requested, and Purchaser has agreed, that if Seller acquires or is awarded the bid to acquire oil and gas interests in the Elk Hills Properties or other similar oil and gas properties, Purchaser and Seller will, if requested by Seller, negotiate in good faith to amend the Confirmation Letter to provide for a longer period of time for the delivery of quantities of Crude Oil under this Agreement; provided that if the acquisition of the Elk Hills Properties is not consummated by May 30, 1998, the parties will negotiate in good faith to re-amend the Confirmation Letter to provide for a delivery schedule of ratable deliveries for the undelivered Crude Oil over the remaining period of calendar year 1998. Unless otherwise agreed, no additional Prepaid Price will be due, nor will any portion of the Prepaid Price be repaid to Purchaser, as a result of such amendment, but the Delivery Month, Delivery Location(s), Required Delivery Quantity, and the proportion to be delivered at each Delivery Location shall be modified in a mutually acceptable manner to give effect to prevailing prices for deliveries of Crude Oil under the modified delivery schedule. If the Confirmation Letter is amended, all references in this Agreement to the Confirmation Letter shall, unless otherwise agreed, refer to the Confirmation Letter as so amended. If Purchaser or Seller are unable to agree on a modification to the original Confirmation Letter within 30 days of such request, Seller shall continue to be required to deliver the quantities of Crude Oil when and contemplated in the initial Confirmation Letter. If the initial Confirmation Letter has been amended and is then required to be re-amended in accordance with this Section 2.01(c), then the parties agree to determine in good faith the amount that would be required to be paid to or by a party at the time of the effective date of the re-amendment to the Confirmation Letter in consideration of an agreement by a market dealer to enter into a transaction with a financially 5 9 viable and reputable party (a "Replacement Transaction") that would have the effect of preserving for such party the economic equivalent of any payment (assuming satisfaction of all conditions precedent) to or from a floating price payor under a standard International Swaps and Derivatives Association, Inc. (formerly known as the International Swap Dealers Association, Inc.) Crude Oil commodity price swap entered into at the effective time of the first amendment to the Confirmation Letter under this Section 2.01(c) (the "First Amended Confirmation") with respect to the volume of Crude Oil contemplated to be delivered at the effective time of the First Amended Confirmation have the Crude Oil pricing, grade and delivery location used for purposes of the First Amended Confirmation as the fixed prices for such swap and settlement dates and notional volumes of Crude Oil that are parallel to the Delivery Months and the Required Delivery Quantities under the First Amended Confirmation. If the amount so determined for the Replacement Transaction would be a payment by the dealer to the floating price payor, such amount shall be paid by Purchaser to Seller in immediately available funds as the agreed consideration for the re-amendment to the Confirmation Letter. If the amount so determined for the Replacement Transaction would be a payment to the dealer by the floating price payor, such amount shall be paid by Seller to Purchaser as the agreed consideration for the re-amendment to the Confirmation Letter. The determination of such amount shall be made on the basis of quotations from Reference Market-makers (as defined in the International Swaps and Derivatives Association, Inc., form Master Agreement (Multi-currency--Cross Border, Version 1992)) in a manner substantially similar to that provided for under such form. In such case, each quotation by a Reference Market-maker will be for an amount, if any, that would be paid to or by the floating price payor in consideration of an agreement between such party and the quoting Reference Market-maker to enter into a Replacement Transaction. If more than three quotations are provided, the agreed amount will be the arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values. If exactly three quotations are provided, the agreed amount will be the quotation remaining after disregarding the highest and lowest quotations. If more than one quotation has the same highest value or lowest value, then one of such quotations shall be disregarded. (d) All payments under this Agreement by Seller or Purchaser shall be made by wire transfer in immediately available funds to an account designated by the party entitled to receive such payment, with such designation to be made at least two business days prior to the date on which this payment is to be made. Section 2.02 Measurement and Tests. (a) All measurements hereunder shall be made from the static tank gauges on 100 percent tank table basis or by positive displacement meters. All measurements and tests shall be made in accordance with the latest American Society for Testing Materials ("ASTM") or American Society of Mechanical Engineers-American Petroleum Institute ("API") (Petroleum PD Meter Code) published methods then in effect, whichever apply. Volume and gravity shall be adjusted to 60 degrees Fahrenheit by the use of Table 6A and 5A of the Petroleum Measurement Tables ASTM Designation D1250 in their latest revision. The Crude Oil delivered hereunder shall be marketable and acceptable in the applicable common or segregated stream of the carrier involved, but not to exceed 1% sediment and water. Full deduction for all free water and sediment and water content shall be made according to the API/ASTM Standard Method then in effect. Either party shall have the right to have a 6 10 representative witness all gauges, tests, and measurements. In the absence of the other party's representative, such gauges, tests and measurements shall be deemed to be correct. (b) Purchaser may have inspections made as to the quality and quantity of Crude Oil delivered hereunder. If it is discovered that the Crude Oil supplied by Seller is materially deficient in either quality or quantity, as determined by a mutually acceptable third party, the cost of the inspection will be borne by Seller. In all other cases, the cost of the inspection will be paid by Purchaser. Section 2.03 Delivery of Crude Oil (a) Seller agrees to deliver to Purchaser, and Purchaser agrees to accept delivery from Seller of, in each Delivery Month at the Delivery Location, the Required Delivery Quantity of Crude Oil required to be delivered hereunder in such Delivery Month. (b) Seller and Purchaser shall take such action as shall be necessary to properly schedule the delivery and receipt of such Crude Oil at the Delivery Location in each Delivery Month in compliance with applicable rules and regulations. (c) Seller shall arrange for its Crude Oil to begin flowing ratably at the Delivery Location by the first day of the Delivery Month in accordance with generally accepted pipeline scheduling practices. Section 2.04 Payment of Delivery Fees. Each party shall be responsible for the payment of its respective in line transfer fees payable to the owner of the pipeline facilities, if any, in connection with the delivery of the Crude Oil at the Delivery Location. Seller shall not be responsible for any insurance, storage, transportation or other costs in respect of the period after title to any Crude Oil delivered hereunder has passed to Purchaser in accordance with Section 2.08 of this Agreement. Except for payment of its in line transfer fees as provided above, Purchaser shall not be responsible for any insurance, storage, transportation or other costs in respect of the period prior to the time title to any Crude Oil delivered hereunder has passed to Purchaser in accordance with Section 2.08 of this Agreement. Section 2.05 Default Delivery Location. (a) Seller is obligated to deliver to Purchaser and Purchaser is obligated to receive from Seller, at the Delivery Location, the Required Delivery Quantity of Crude Oil in accordance with the terms and conditions of this Agreement. If as a result of a Force Majeure, either (i) Seller is unable, after using all reasonable business efforts, to deliver the Required Delivery Quantity of Crude Oil to Purchaser at the Delivery Location or (ii) Purchaser is unable, after using all reasonable business efforts, to receive the Required Delivery Quantity of Crude Oil from Seller at the Delivery Location, Seller shall be obligated to deliver and Purchaser shall be obligated to receive, the relevant Required Delivery Quantity of Crude Oil at a mutually acceptable comparable delivery location with mutually acceptable adjustments for quality and location. 7 11 (b) Seller may elect to deliver Crude Oil at an alternate delivery location other than the Delivery Location, which alternate delivery location may be mutually agreed upon by the parties from time to time; provided that Seller has given Purchaser written notice of its election no later than ten (10) Business Days before the end of the calendar month preceding the Delivery Month in which it proposes to make delivery at such alternate delivery location. If there is price differential on a per Barrel basis associated with the delivery of Crude Oil at such alternate delivery location (in each case as measured against prevailing prices at the Delivery Location), Purchaser shall prepare and deliver to Seller, within five (5) Business Days after the end of the applicable Delivery Month a certificate setting out the calculation of the price differential on a per Barrel basis accompanied by reasonably available backup documentation therefor. Any such certificate shall, absent manifest error, be conclusive evidence of the amount of such price differential. If Seller owes Purchaser compensation pursuant to this Section 2.05(b), Seller shall pay Purchaser such amount with five (5) Business Days following its receipt of Purchaser's certificate. If Purchaser owes Seller compensation pursuant to this Section 2.05(b), Purchaser shall pay Seller such amount on the next succeeding Payment Date. (c) During any Delivery Month, Seller may elect to deliver Crude Oil in excess of the Required Delivery Quantity for such Delivery Month by giving Purchaser not less than two (2) Business Day's prior written notice; provided that Purchaser may decline to accept such excess volumes if it determines, in its sole discretion, that no readily available market exists for such excess volumes, that such volumes are too small to be readily marketed or that it is uneconomical for it to accept such excess volumes. If Purchaser wishes to decline Seller's election, it shall give Seller written notice within one (1) Business Day of its receipt of Seller's notice. If Purchaser accepts Seller's election, the excess volume so delivered shall be allocated on a pro rata basis to reduce the Required Delivery Quantity for each of the remaining Delivery Months, commencing on the next succeeding Delivery Month. Purchaser shall promptly furnish to Seller an amendment to the Confirmation Letter evidencing such new Required Delivery Quantities. Section 2.06 Failure of Delivery or Receipt; Transportation and Balancing. (a) (i) Without prejudice to Articles V and VI, if as a result of an event of Force Majeure, Seller is unable to meet its delivery obligation in respect of a Delivery Month at the Delivery Location or at a mutually satisfactory comparable delivery location or locations (in which case Seller shall be deemed the "Responsible Party"), then Seller shall pay to Purchaser, as liquidated damages, the Replacement Value of the Deficiency Quantity of Crude Oil in respect of that Delivery Month. The Replacement Value shall be paid to Purchaser no later than the Payment Date next following such Delivery Month, and Purchaser will accept such payment in lieu of Crude Oil not delivered in such Delivery Month. Where Seller is unable to meet its acceptance obligation as aforesaid, Purchaser shall use all reasonable efforts to minimize the Replacement Value of any Deficiency Quantity. If the Replacement Value is based on the price Purchaser pays to replace the Deficiency Quantity, Purchaser shall prepare and deliver to Seller, within five (5) Business Days after the end of the applicable Delivery Month, a certificate setting out the calculation of the Replacement Value accompanied by reasonably available back-up documentation therefor. Any such certificate shall, absent manifest error, be conclusive evidence of the amount due in respect of the Replacement Value. Purchaser shall notify Seller as soon as possible of any anticipated inability to perform all or any portion of its obligations hereunder. 8 12 (ii) Without prejudice to Article VI, if as a result of an event of Force Majeure, Purchaser is unable to meet its obligation to accept delivery in respect of a Delivery Month at the Delivery Location or at a mutually satisfactory comparable delivery location or locations (in which case Purchaser shall be deemed the "Responsible Party"), then Seller shall pay to Purchaser, in lieu of delivery of the Required Delivery Quantity, the Replacement Value of the Deficiency Quantity of Crude Oil in respect of that Delivery Month. The Replacement Value shall be paid to Purchaser no later than the Payment Date next following such Delivery Month, and Purchaser will be required to accept such payment in lieu of Crude Oil not delivered in such Delivery Month. Where Purchaser is unable to meet its acceptance obligation as aforesaid, Seller shall use all reasonable efforts to maximize the Replacement Value of any Deficiency Quantity. If the Replacement Value is based on the price Seller receives for the Deficiency Quantity, Seller shall prepare and deliver to Purchaser, within five (5) Business Days after the end of the applicable Delivery Month, a certificate setting out the calculation of the Replacement Value accompanied by reasonably available back-up documentation therefor. Any such certificate shall, absent manifest error, be conclusive evidence of the amount due in respect of the Replacement Value. Purchaser shall notify Seller as soon as possible of any anticipated inability to perform all or any portion of its obligations hereunder. (b) In the event that (i) Seller or Seller's transporter inadvertently delivers more or less than the Required Delivery Quantity for any Delivery Month, or (ii) Purchaser or Purchaser's transporter inadvertently receives more or less than the Required Delivery Quantity for any Delivery Month, such overages or underages shall be corrected or adjusted in cash or Crude Oil as the parties may agree or in accordance with applicable tariff provisions, if any; and the Responsible Party will be liable to the other party for any associated pipeline penalties or cashouts. Each party shall notify the other as promptly as possible of any changes in its rate of delivery or receipt of Crude Oil at the Delivery Location and take all reasonable actions necessary to avoid the incurrence of pipeline penalties and imbalances. Section 2.07 Exclusive Remedy. It is expressly agreed, except as provided in Sections 5.02, 5.03, 6.02 and 6.03, that payments made in accordance with Section 2.06 hereof shall constitute the exclusive remedies available to Seller and Purchaser for nondelivery or nonacceptance of Crude Oil. To the fullest extent permitted by applicable law, neither party shall be liable for any punitive, exemplary, incidental, consequential, indirect or direct (other than as set forth in Section 2.06) or other damages, in tort, contract or otherwise in respect thereof. Section 2.08 Possession, Title and Risk. Possession of and title to Crude Oil delivered pursuant hereto shall pass from Seller to Purchaser at the Delivery Location when the Crude Oil is accepted by the pipeline for transport for Purchaser's account and is recorded by the proper metering device. Until such time, Seller shall be deemed to be in control and possession of, have title to and be responsible for such Crude Oil and, after such time, Purchaser shall be deemed to be in control and possession of, have title to and be responsible for such Crude Oil. Section 2.09 Royalties. Seller shall at all times have the obligation to make settlements for all royalties and payments to mineral and royalty owners and all other Persons having an ownership interest in the Crude Oil delivered by Seller to Purchaser hereunder and Seller hereby agrees to indemnify Purchaser and save it harmless from all suits, actions, debts, accounts, damages, costs, 9 13 losses and expenses arising from or out of adverse claims of any and all Persons in respect of royalties, taxes, license fees or charges thereon which are applicable before the title passes to Purchaser or which may be levied and assessed upon Seller in respect of a sale of the Crude Oil to Purchaser. Section 2.10 Taxes. Seller is liable for and shall pay, cause to be paid or reimburse Purchaser if Purchaser shall have paid, all Taxes applicable to the Crude Oil sold hereunder prior to the time title to the Crude Oil has passed to Purchaser, unless allocated to Purchaser as hereinafter provided. Purchaser is liable for and shall pay, cause to be paid or reimburse Seller if Seller shall have paid, all Taxes applicable to the Crude Oil sold hereunder at or after the time title to the Crude Oil has passed to Purchaser, applicable to the sale hereunder as a result of any subsequent sale or use of the Crude Oil by Purchaser, or imposed on or collected from Purchaser by law. Both parties shall use reasonable efforts to administer this Agreement and implement the provisions in accordance with their intent to minimize Taxes. Purchaser represents that it is engaged in the business of reselling the Crude Oil delivered under this Agreement and Purchaser is purchasing the Crude Oil for resale to third parties, and accordingly Purchaser is entitled to purchase the Crude Oil hereunder free of any Taxes. Purchaser shall provide Seller a certificate of exemption or other reasonably satisfactory evidence of exemption promptly after execution of this Agreement. For each Delivery Month during the term of this Agreement, Purchaser shall provide Seller appropriate evidence that the Required Delivery Quantity of Crude Oil was resold to a third party in accordance with the sale for resale exemption under applicable state law. Each party agrees to cooperate with obtaining any exemption from or reduction of Tax upon request by the other party. Section 2.11 No Warranty. PURCHASER ACKNOWLEDGES THAT IT HAS ENTERED INTO THIS AGREEMENT AND IS CONTRACTING FOR THE CRUDE OIL TO BE SUPPLIED BY SELLER BASED SOLELY UPON THE EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES HEREIN SET FORTH (including Section 2.02) AND, SUBJECT TO SUCH COVENANTS, REPRESENTATIONS AND WARRANTIES (including Section 2.02), ACCEPTS SUCH CRUDE OIL "AS IS, WHERE IS" AND "WITH ALL FAULTS." ARTICLE III - REPRESENTATIONS AND WARRANTIES Section 3.01 Representations and Warranties of Seller. Seller represents and warrants to Purchaser as follows: (a) Status and Authority. Seller is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to own its properties, to conduct its business as conducted at present and to execute, deliver and perform this Agreement. (b) Power and Authority. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated by this Agreement are within Seller's power and authority and have been duly authorized by all necessary corporate action. (c) Consents, Approvals, Etc. No authorization, consent or approval of, or other action by, or notice to or filing with, any governmental authority, regulatory body or any other Person is 10 14 required for the due authorization, execution, delivery or performance by Seller of this Agreement, or the consummation of the transactions contemplated by this Agreement, except those approvals which have been obtained, and those notices and filings which have been made, copies of all of which have been delivered to Purchaser. (d) Execution and Delivery. This Agreement has been duly executed and delivered to Purchaser by Seller and is the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general principles of equity. (e) Compliance with Laws. Neither the execution, delivery and performance by Seller of this Agreement nor the consummation of the transactions contemplated by this Agreement (i) does or will violate any provision of any Applicable Instrument of Seller or any Governmental Requirement or (ii) does or will result in or require the creation or imposition of any lien on any properties, assets or revenues of Seller. Seller is in compliance in all material respects with the Applicable Instruments of Seller and all Governmental Requirements applicable to Seller. (f) Investment Company. Seller is not an "investment company" subject to regulation under the Investment Company Act of 1940, as amended. (g) Public Utility Holding Company. Seller is not, or is not subject to regulation as, a "holding company," a "subsidiary company" of a "holding company," an "affiliate" of a "holding company," or an affiliate" of a "subsidiary company" of a "holding company," in each case as such term is defined in the Public Utility Holding Company Act of 1935, as amended. (h) Ownership of Crude Oil. The Crude Oil to be delivered by Seller to Purchaser hereunder shall be delivered to Purchaser with good and marketable title thereto, free and clear of all liens, encumbrances or any other adverse claims whatsoever, including royalties and Taxes for which Seller is responsible under Sections 2.09 and 2.10. (i) Commercial Purpose. Seller has entered into this transaction for commercial purposes related to its business and not for speculative purposes. Seller has the capability, and intends, to make delivery of the Crude Oil to be delivered hereunder. Seller is selling the Crude Oil in the ordinary course of business. Seller is also acting as a principal and not as an agent, understands and acknowledges that Purchaser has been and will be acting only on an arm's length basis and not as its agent, broker, advisor or fiduciary in any respect, is relying solely upon its own evaluation of this Agreement and the transactions contemplated hereby (including the present and future results, consequences, risks and benefits thereof, whether financial, accounting, tax, legal or otherwise) and upon advice from its own professional advisors, understands this Agreement and the transactions contemplated hereby and the risks associated therewith, has determined that those risks are appropriate for it, and is willing to assume those risks, and has not relied and will not be relying upon any evaluation or advice (including any recommendation, opinion or representation) from Purchaser or its affiliates or the representatives or advisors of Purchaser or its affiliates. 11 15 Section 3.02 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller as follows: (a) Corporate Status and Authority. Purchaser is a company incorporated under the laws of and has all necessary corporate power and authority to carry on its business as now being conducted by it. Purchaser has full power and authority to enter into this Agreement and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with the terms hereof. (b) Valid Authority. Purchaser has taken all necessary corporate action to authorize the creation, execution, delivery and performance by it of this Agreement and for it to observe and perform the provisions of this Agreement in accordance with its terms. (c) Validity of Documents and Enforceability. This Agreement constitutes a valid and legally binding obligation of Purchaser enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity. Neither the execution and delivery of this Agreement nor compliance with the terms and conditions hereof by Purchaser (i) will result in a violation of the terms of any Applicable Instrument of Purchaser or (ii) requires any approval or consent of any governmental authority or agency having jurisdiction except such as has already been obtained. (d) Commercial Purpose. Purchaser has entered into this transaction for commercial purposes related to its business in conjunction with its line of business and not for speculative purposes. Purchaser has the capacity, and intends, to take delivery of the Crude Oil to be delivered hereunder. Purchaser is acquiring the Crude Oil in the ordinary course of business. ARTICLE IV - COVENANTS Section 4.01 Affirmative Covenants of Seller. Seller covenants and agrees with Purchaser that so long as any obligation of Seller to deliver Crude Oil or to make any payment is outstanding hereunder: (a) Compliance with Laws, etc. Seller will comply with all Governmental Requirements applicable to the performance of Seller's obligations hereunder, except where noncompliance therewith would not have a material adverse effect on Seller. Seller will comply in all material respects with the Applicable Instruments of Seller. (b) Notice of Event of Default. Seller shall notify Purchaser of the occurrence of any event which with the passage of time or the giving of notice, or both, would be an Event of Default or an Event of Change promptly after becoming aware of the same. (c) Qualification. Seller will be duly qualified to do business as a foreign corporation and will be in good standing under the laws of all jurisdictions in which the failure to be so qualified could have a material adverse effect on Seller by or before the first Delivery Month. 12 16 (d) Letter of Credit. If the Confirmation Letter is amended pursuant to Section 2.01(c), Seller shall provide a letter of credit as contemplated in that certain letter dated September 26, 1997 among Chase Securities, Inc., The Chase Manhattan Bank and Guarantor. ARTICLE V - EVENTS OF DEFAULT AND EARLY TERMINATION Section 5.01 Events of Default. Each of the following events shall constitute an "Event of Default" by Seller under this Agreement: (a) Seller shall (i) fail to deliver the Required Delivery Quantity of Crude Oil to the Delivery Location in accordance with the terms of this Agreement and (ii) if such failure is the result of an event of Force Majeure, fail to make a payment of the Replacement Value in respect thereof in accordance with the provisions of Section 2.06 and such failure is not remedied within one (1) Business Day; or (b) Seller shall fail to pay any amounts due to Purchaser in accordance with the terms of Section 2.06 of this Agreement and such failure is not remedied within one (1) Business Day after the Business Day on which such payment is due; or (c) Seller shall fail to perform or observe any material term, covenant or agreement herein contained on its part to be performed or observed (other than any term, covenant or agreement whose breach or default in performance is specifically dealt with elsewhere in this Section 5.01) and such failure shall remain unremedied for twenty-five (25) days after notice thereof to Seller by Purchaser; or (d) Seller shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Seller seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property, and in the case of any such proceeding instituted against it (but not yet instituted by it), shall remain undismissed or unstayed for a period of forty-five (45) days or Seller shall take any corporate action to authorize any of the actions set forth above in this Section 5.01(d); or (e) any representation or warranty made by Seller in this Agreement shall prove to have been incorrect in any material respect when made or when deemed made; or (f) Seller shall fail to deliver Margin (as defined in the Margin Agreement) in accordance with its obligations under the second sentence of Section 2 of the Margin Agreement and such failure is not remedied within one (1) Business Day after notice of such failure is given to Seller by Purchaser; or 13 17 (g) Seller shall fail to perform or observe any term, covenant or agreement (other than with respect to its obligations under the second sentence of Section 2 thereof) contained in the Margin Agreement on its part to be performed or observed and such failure is not remedied within thirty (30) days notice thereof to Seller by Purchaser; or (h) an Event of Default under the Guaranty Agreement shall occur and be continuing or a Gas Contract Event of Default occurs. Section 5.02 Early Termination by Purchaser. If at any time an Event of Default has occurred and is continuing, Purchaser may, by not more than five (5) Business Days notice to Seller specifying the relevant Event of Default, designate a Business Day not earlier than the Business Day such notice is effective as an early termination date ("Early Termination Date"); provided, however, that if an Event of Default pursuant to Section 5.01(d) shall have occurred, the Early Termination Date shall occur immediately on the occurrence of such Event of Default without the need for Purchaser to give any prior notice. Upon the designation or occurrence of an Early Termination Date, the obligation of Seller to make any further deliveries of Crude Oil to Purchaser under this Agreement shall terminate and Seller shall pay to Purchaser the Termination Payment together with any Unpaid Amounts. All amounts payable under this Section 5.02 shall become due on the Early Termination Date and shall be payable on the Business Day immediately following delivery by Purchaser of the statement required pursuant to Section 5.03(c). Such amount will be paid together with (to the extent permitted by applicable law) interest thereon (before as well as after judgment) from (and including) the Early Termination Date to (but excluding) the date such amount is paid, at the rate specified in Section 7.02. The parties agree that the Termination Payment is a reasonable pre-estimate of the damages which would be incurred by Purchaser as a result of an Event of Default and not a penalty. Section 5.03 Calculation of Termination Payment. (a) "Termination Payment" shall be the lowest amount determined on the basis of quotations from at least four Reference Dealers as the amount that would have been payable on the Termination Date by Purchaser in consideration of an agreement between Purchaser and the quoting Reference Dealer, and subject to such documentation evidencing agreement on price as they may in good faith agree, with the relevant Termination Date as the date of commencement of such agreement that would have the effect of preserving for Purchaser the equivalent of the delivery obligations that, but for the occurrence of the relevant Termination Date, Seller would have been obligated to perform hereunder after such Termination Date. Purchaser will request each Reference Dealer to provide its quotation to the extent practicable as of the same time (without regard to different time zones) on the relevant Termination Date (or, if a Termination Date is deemed to occur, as of a time as soon thereafter as practicable). The time as of which such quotations are to be provided will be selected in good faith by Purchaser. (b) If the Termination Payment cannot be determined in accordance with Section 5.03(a), "Termination Payment" shall be an amount equal to the total amount required, as determined as of the relevant Early Termination Date by Purchaser in good faith, to compensate it for its direct actual losses and costs (including loss of bargain and reasonable legal fees and other out-of-pocket expenses) that it may incur as a result of the early termination of Seller's delivery obligations hereunder, including, 14 18 without limitation, any damages, losses, or expenses incurred in obtaining, terminating, liquidating, reestablishing or employing hedges or related trading positions against Purchaser's position hereunder. (c) On or as soon as reasonably practicable following the occurrence of a Termination Date, Purchaser will calculate the Termination Payment and will provide Seller with a statement (1) showing, in reasonable detail, such calculations (including all relevant quotations) and (2) giving details of the relevant account to which the Termination Payment is payable. Any such statement shall, absent manifest error, be conclusive evidence of the amount due in respect of the Termination Payment. ARTICLE VI - EVENTS OF CHANGE AND ACCELERATED TERMINATION Section 6.01 Events of Change. Each of the following events shall constitute an "Event of Change" for the purposes of this Agreement: (a) the enactment, promulgation, execution or ratification of, or any change in or amendment to, any regulation or law (or the application or interpretation of any regulation or law, as determined by a court or regulatory authority of competent jurisdiction or as determined by the opinion of independent counsel mutually acceptable to Seller and Purchaser) that occurs after the date hereof which would result in the imposition of a Tax (other than an increase in the rate of a general tax on overall income) or of state or federal government royalties (in excess of those royalties currently in effect) or of export or price controls in a material amount by any government or taxing authority upon a party hereto with respect to delivery of, or acceptance of delivery of, Crude Oil under this Agreement or with respect to any cash payment made pursuant to Section 2.06 which in any case would materially adversely affect the net cost to Seller or Purchaser of performing its obligations hereunder; or (b) the enactment, promulgation, execution or ratification of, or any change in or amendment to, any regulation or law (or the application or interpretation of any regulation or law, as determined by a court or regulatory authority of competent jurisdiction or as determined by the opinion of independent counsel mutually acceptable to Seller and Purchaser) that occurs after the date hereof which would result in the performance of any obligation of Seller to deliver Crude Oil or Purchaser to accept delivery of Crude Oil under this Agreement being unlawful; or (c) any one or more events of Force Majeure that occur and continue for a consecutive period of longer than ninety (90) days. Section 6.02 Accelerated Termination. (a) During the continuation of an Event of Change contemplated by Section 6.01(a), both parties shall make reasonable efforts to make arrangements to avoid the imposition of any Tax contemplated by Section 6.01(a); provided that this Section 6.02 shall not impose on either party any obligation other than to negotiate in good faith to make such arrangements as will not adversely affect the parties. 15 19 (b) During the continuation of any Event of Change, and if any arrangement is not, or is not capable of being, made pursuant to Section 6.02(a), then either party may designate an accelerated termination date ("Accelerated Termination Date") upon not less than two (2) and not more than ten (10) Business Days' notice to the other party. Upon the Accelerated Termination Date, the parties' obligations hereunder shall terminate, except for the obligations contained in Section 6.03 and Section 7.02. Section 6.03 Payments on Accelerated Termination. Upon the designation of an Accelerated Termination Date, Seller, at the option of Purchaser, shall either (i) deliver any Crude Oil otherwise deliverable hereunder to Purchaser, provided that such delivery of Crude Oil by Seller would not then be unlawful and Seller has the ability to make such delivery and pay any Unpaid Amounts or (ii) Seller shall pay to Purchaser an amount equal to the Termination Payment plus any Unpaid Amounts. All amounts payable under this Section 6.03 shall become due on the Accelerated Termination Date and shall be payable on the fifth Business Day following delivery by Purchaser of the certificate of calculation of the Termination Payment contemplated by Section 5.03. Upon the occurrence of an Accelerated Termination Date, Purchaser may, in its sole discretion, elect either remedy set forth in this Section 6.03. Such remedies shall be Purchaser's sole remedy; provided that nothing herein shall affect a party's obligation to make payments of amounts which were due and owing (whether or not payable) on or prior to the occurrence of such Accelerated Termination Date. ARTICLE VII - MISCELLANEOUS Section 7.01 Notice. Any demand, notice or communication to be made or given hereunder shall be in writing and may be made or given by personal delivery or by transmittal by telecopy, rapifax or other electronic means of communication addressed to the respective party as follows: To Seller: Crystal Properties and Trading Company P.O. Box 50401 Henderson, Nevada 89016 Attention: Chief Financial Officer Telecopier No.: (702) 598-3651 Telephone No.: (702) 598-3738 with copy to: Fulbright & Jaworski, L.L.P. 1301 McKinney Street Suite 5100 Houston, Texas 77002 Attention: Curtis W. Huff Telecopier No.: (713) 651-5246 Telephone No.: (713) 651-5657 16 20 To Purchaser: Mahonia Limited 22 Grenville Street St. Helier Jersey, Channel Islands JE1 1BL Attention: Ian James Telecopier No.: 44-1534-609333 Telephone No.: 44-1534-609000 with copy to: The Chase Manhattan Bank 270 Park Avenue, 8th Floor New York, New York 10017 Attention: Alex Mintcheff Telecopier No.: (212) 834-6084 Telephone No.: (212) 834-2032 and Chase Securities Inc. 700 Travis -5 TCBN Houston, Texas 77002 Telecopier No.: (713) 216-4117 Telephone No.: (713) 216-4110 Attention: Paul Nidoh or to such other address or telecopy number or rapifax number as any party may from time to time notify the others in accordance with this Section 7.01. Any demand, notice or certification made or given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof, or, if made or given by electronic means of communication, on the date of such transmittal or if such date is not a Business Day, on the first Business Day following the transmittal thereof. Section 7.02 Interest on Overdue Amounts. If any monetary amounts payable under this Agreement are not paid when due, then such overdue amount shall bear interest for each day until paid in full, payable on demand, both before and after default, judgment, the Early Termination Date and the Accelerated Termination Date, at the U.S. Base Rate plus one and one-half percent per annum on the basis of the actual number of days elapsed and on the basis of a year of 360 days, as the case may be. Such interest shall be determined daily and compounded monthly in arrears on the last day of each calendar month. Section 7.03 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of laws that would result in the application of the laws of another jurisdiction. 17 21 Section 7.04 Severability. In the event that one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law the validity, legality or enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Each of the Sections of this Agreement is hereby declared to be separate and distinct. Section 7.05 Currency. Unless otherwise stated, all amounts expressed herein in terms of money refer to the United States Dollar and all payments to be made hereunder shall be made in such currency. Section 7.06 Purchaser Not an Agent. Purchaser acknowledges and confirms that all purchases of Crude Oil hereunder are being made by it as a principal and that it is not acting as agent for any other Person in connection with purchases of Crude Oil hereunder. Section 7.07 Benefit of the Agreement. This Agreement shall inure to the benefit of and be binding upon Seller, Purchaser and their respective successors and assigns. Section 7.08 Assignment and Transfer. Except as expressly provided in this Section 7.08, neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Without the consent of Seller, Purchaser may assign this Agreement to any of its direct or indirect wholly owned subsidiaries, whether now existing or hereafter created and/or may assign this Agreement to any Person as security for any financing or hedging provided to Purchaser by such Person and such Person may exercise, upon default by Purchaser of its agreements with such Person, the rights of Purchaser hereunder. Upon notice to Seller of any such assignment, Seller agrees to substitute such assignee or successor corporation for Purchaser hereunder. Without the consent of Purchaser, Seller may (i) assign this Agreement to any direct or indirect wholly owned subsidiary of Guarantor or (ii) merge with any direct or indirect wholly owned subsidiary of Guarantor; provided, however, that (A) such subsidiary agrees to assume all obligations under this Agreement and the Margin Agreement, (B) such subsidiary is a corporation, limited liability company or limited partnership incorporated under the laws of a state in the United States, (C) no Event of Default would occur as the result thereof, and (D) the Guaranty Agreement remains in effect. Upon notice to Purchaser of any such assignment or merger, Purchaser agrees to substitute such assignee or successor for Seller hereunder. Section 7.09 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement, undertaking, declarations, commitments or representations, written or oral, in respect thereof. There are no unwritten oral agreements among the parties. Section 7.10 Amendments. This Agreement may not be modified or amended except by an instrument in writing signed by Purchaser and Seller or by their respective successors or permitted assigns. Section 7.11 No Waivers, Remedies. No failure to exercise and no delay in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The 18 22 remedies herein provided are cumulative and not exclusive of any remedies provided by law except as otherwise expressly provided herein. Section 7.12 Time of the Essence. Time shall be of the essence of this Agreement. Section 7.13 Counterparts. This Agreement may be executed in counterparts, each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. Section 7.14 Margin Agreement. Seller's payment obligations under this Agreement are secured by the Margin Agreement, which Margin Agreement is hereby incorporated herein for all purposes. Section 7.15 Intent. The parties intend that this Agreement shall constitute a purchase and sale of inventoriable goods and a forward contract within the meaning of Section 556 of the United States Bankruptcy Code of 1978, as amended from time to time. Section 7.16 Disclosure of Information. In the event that Seller provides to Purchaser written confidential information belonging to Seller or its affiliates which has been denominated in writing as "confidential", Purchaser agrees to thereafter maintain such information in confidence in accordance with the standards of care and diligence that each utilizes in maintaining its own confidential information. This obligation of confidence shall not apply to such portions of the information which (i) are in the public domain, (ii) hereafter become part of the public domain without Purchaser breaching its obligation of confidence to Seller, (iii) are previously known by Purchaser from some source other than Seller, (iv) are hereafter developed by Purchaser without using Seller's information, (v) are hereafter obtained by or available to Purchaser from a third party who owes no obligation of confidence to Seller with respect to such information or through any other means other than through disclosure by Seller, (vi) are disclosed with Seller's consent, (vii) must be disclosed either pursuant to any Governmental Requirement or to Persons regulating the activities of Purchaser, or (viii) as may be required by law or regulation or order of any governmental authority in any judicial, arbitration or governmental proceeding. Further, Purchaser may disclose any such information to any independent petroleum engineers or consultants, any independent certified public accountants, any legal counsel employed by it in connection with this Agreement, including without limitation, the enforcement or exercise of all rights and remedies thereunder; provided, however, that it imposes on such Person to whom such information is disclosed the same obligation to maintain the confidentiality of such information as is imposed upon it hereunder. Notwithstanding anything to the contrary provided herein, this obligation of confidence shall cease three (3) years from the date the information was furnished, unless Seller requests in writing at least 30 days prior to the expiration of such three year period, that Purchaser maintain the confidentiality of such information for an additional three year 19 23 period. Seller waives any and all other rights it may have to confidentiality as against Purchaser arising by contract, agreement, statute or law except as expressly stated in this Section. 20 24 IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the date first written above. CRYSTAL PROPERTIES AND TRADING COMPANY By:_______________________ J.A. Ballew Vice President MAHONIA LIMITED By:_________________________ Name: Title: 21 25 ANNEX 1 TO CRUDE OIL INVENTORY FORWARD SALE CONTRACT CONDITIONS PRECEDENT 1. The executed Margin Agreement. 2. The executed Guaranty Agreement. 3. An opinion of Fulbright and Jaworski, L.L.P., special counsel to Seller and Guarantor, in substantially the form set out in Exhibit A; an opinion of Lionel, Sawyer & Collins, Nevada counsel to the Seller. 4 A certificate of the Secretary or an Assistant Secretary of Seller setting forth (i) resolutions of its Board of Directors with respect to the authorization of Seller to execute and deliver the Agreement and the Margin Agreement and to enter into the transactions contemplated in those documents, (ii) the officers of such Person (y) who are authorized to sign such agreements and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with such agreements and the transactions contemplated hereby, (iii) specimen signatures of the authorized officers, and (iv) the articles of incorporation and by-laws of Seller, certified as being true and complete. Purchaser may conclusively rely on such certificate until it receives notice in writing from Seller to the contrary. 5. A certificate of the Secretary or an Assistant Secretary of Guarantor setting forth (i) resolutions of its board of directors with respect to the authorization of Guarantor to execute and deliver the Guaranty Agreement and to enter into the transactions contemplated in those documents, (ii) the officers of the Guarantor (y) who are authorized to sign such agreement and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with such agreement and the transactions contemplated hereby, (iii) specimen signatures of the authorized officers, and (iv) the articles or certificate of incorporation and bylaws of Guarantor, certified as being true and complete. Purchaser may conclusively rely on such certificate until it receives notice in writing from Seller to the contrary. 6. An executed security agreement and financing statement granting to the Purchaser a lien on the agreements evidencing the Hedged Volumes (as defined in the Margin Agreement). 7. Copy of the agreements evidencing the Hedged Volumes. Annex 1- i 26 NATURAL GAS FORWARD SALE CONTRACT DATED SEPTEMBER 30, 1997 BETWEEN CRYSTAL PROPERTIES AND TRADING COMPANY AND MAHONIA LIMITED 27 TABLE OF CONTENTS ARTICLE I - INTERPRETATION Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1.02 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1.03 Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1.04 Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE II - SALE AND PURCHASE OF NATURAL GAS Section 2.01 Sale and Purchase of Natural Gas . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 2.02 Measurement and Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2.03 Delivery and Receipt of Natural Gas . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2.04 Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 2.05 Delivery Points upon Force Majeure; Alternate Delivery Points. . . . . . . . . . . . . . 7 Section 2.06 Failure of Delivery or Receipt; Transportation and Balancing . . . . . . . . . . . . . . 8 Section 2.07 Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.08 Possession, Title and Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.09 Royalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 2.11 No Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE III - REPRESENTATIONS AND WARRANTIES Section 3.01 Representations and Warranties of Seller . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 3.02 Representations and Warranties of Purchaser . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE IV - COVENANTS Section 4.01 Affirmative Covenants of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE V - EVENTS OF DEFAULT AND EARLY TERMINATION Section 5.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 5.02 Early Termination by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 5.03 Calculation of Termination Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE VI - EVENTS OF CHANGE AND ACCELERATED TERMINATION Section 6.01 Events of Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 6.02 Accelerated Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 6.03 Payments on Accelerated Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE VII - MISCELLANEOUS Section 7.01 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 7.02 Interest on Overdue Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 7.03 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.04 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.05 Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.06 Purchaser Not an Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.07 Benefit of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.08 Assignment and Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.09 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
i 28 Section 7.10 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.11 No Waivers, Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.12 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.14 Margin Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.15 Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.16 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Annex 1 Seller's Conditions Precedent Exhibit A - Form of Opinion of Counsel of Guarantor ii 29 NATURAL GAS FORWARD SALE CONTRACT This NATURAL GAS INVENTORY FORWARD SALE CONTRACT (this "Agreement") is entered into as of September 30, 1997 between CRYSTAL PROPERTIES AND TRADING COMPANY, a corporation organized under the laws of the State of Nevada (the "Seller"), and MAHONIA LIMITED, a company incorporated under the laws of Jersey (the "Purchaser"). WHEREAS, Seller is proposing to acquire interests in various oil and natural gas properties located in Kern County, California, known as the Elk Hills Naval Petroleum Reserve Numbered 1 (the "Elk Hills Properties"), as well as other proved producing oil and gas properties located in the United States; and WHEREAS, Seller desires to sell and Purchaser desires to purchase certain quantities of Natural Gas on the terms and conditions set forth herein; NOW THEREFORE, in consideration of the respective covenants and agreements of the parties hereinafter set forth and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties, the parties hereby agree as follows: ARTICLE I - INTERPRETATION Section 1.01 Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated: "Accelerated Termination Date" shall have the meaning ascribed thereto in Section 6.02(b). "Applicable Instruments" of any Person shall mean the Certificate or Articles of Incorporation, by-laws and other organizational documents of such Person and all contracts, indentures, agreements, instruments and documents to which such Person is a party or by which such Person or any assets of such Person may be bound or affected. "Btu" means the amount of energy required to raise the temperature of one pound of pure water one degree Fahrenheit from 59 degrees Fahrenheit to 60 degrees Fahrenheit. "Business Day" means a day, other than a Saturday or a Sunday, on which commercial banks are not authorized or required to be closed in New York, New York. "Confirmation Letter" have the meaning ascribed thereto in Section 2.01. "Deficiency Quantity" means, in respect of a particular Delivery Month, the amount by which the Required Delivery Quantity of Natural Gas for that Delivery Month exceeds the quantity of Natural Gas actually delivered and received hereunder in respect of such Delivery Month. "Delivery Month" means each calendar month commencing with the month of January, 1998 through and including the month of December, 1998. 1 30 "Delivery Point" means a delivery point set forth in the Confirmation Letter (which is currently Transco Pipeline (upstream of Station 65), or if the terms of Section 2.05(b) are satisfied, any of the following locations: (i) Henry Hub or (ii) Tennessee Gas Transmission, Zone 1. "Early Termination Date" shall have the meaning ascribed thereto in Section 5.02. "Event of Change" shall have the meaning ascribed thereto in Section 6.01. "Event of Default" shall have the meaning ascribed thereto in Section 5.01. "Federal Funds Rate" means, for any day, a fluctuating interest rate per annum equal for such day to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Purchaser from three Federal funds brokers of recognized standing selected by Purchaser. "Force Majeure" shall mean a failure by either party to perform obligations hereunder, except for the obligation to make payment due hereunder, to the extent that such failure is caused by war, riots, insurrections, fires, explosions, sabotage, strikes and other labor or industrial disturbances, acts of God or the elements, government laws, regulations or requests, disruption or breakdown of production or transportation facilities, failures of transporters in receiving and delivering natural gas tendered, compliance with OFO's or other similar notice from a transporter, or by any other cause reasonably beyond the control of such party, but does not include the failure to perform obligations solely as a result of the fact that to do so will result in economic loss or hardship to such party. "Governmental Requirement" shall mean all judgments, orders, writs, injunctions, decrees, awards, laws, ordinances, statutes, regulations, rules, franchises, permits, certificates, licenses, authorizations and the like of any government or any commission, board, court, agency, instrumentality or political subdivision thereof. "Guarantor" shall mean Crystal Oil Company, a Louisiana corporation. "Guaranty Agreement" shall mean that certain Guaranty Agreement dated of even date herewith by Guarantor, in favor of Purchaser. "Henry Hub" means the Sabine Pipe Line Company pipeline facilities at Texaco Inc.'s Henry Gas Processing Plan near Erath, Louisiana. "Margin Agreement" means the Margin Agreement of even date herewith between Seller and Purchaser, as the same may be modified or amended from time to time. "MMBtu" means one million Btus. "Natural Gas" means a mixture of gaseous hydrocarbons consisting primarily of methane and meeting the quality standards and specifications required pursuant to Section 2.02. 2 31 "NYMEX" means the New York Mercantile Exchange, Inc. and any successor thereto by merger, consolidation, or sale of assets. "Oil Contract Event of Default" shall mean any Event of Default, as such term is defined in the Oil Forward Sale Contract. "Oil Forward Sale Contract" shall mean that certain Crude Oil Forward Sale Contract between Seller and Purchaser of even date herewith. "OFO" shall have the meaning given such term in Section 2.06(c). "Payment Date" shall mean the 20th day of each month (or if such day is not a Business Day, the next succeeding Business Day) commencing on February 20, 1998. "Person" shall mean any individual, corporation, company, partnership, joint venture, trust, unincorporated association, government or any commission, board, court, agency, instrumentality or political subdivision thereof, any other entity or any trustee, receiver, custodian or similar official. "Prepaid Price" shall be the amount set forth in the Confirmation Letter. "Reference Dealer" means a leading company in the natural gas marketing business selected by Purchaser in good faith from among companies whose credit standings satisfy all the criteria that Purchaser applies generally with respect to transactions similar to those contemplated by this Agreement. "Replacement Value" means (i) if Seller is the party which has failed to perform, the price which Purchaser, acting in good faith and at arm's length, actually pays, or has contracted to pay, for Natural Gas to replace the Deficiency Quantity at the agreed Delivery Point plus any additional transportation and other costs and expenses incurred by Purchaser in connection with the purchase of such Natural Gas, and (ii) if Purchaser is the party which has failed to perform, the price which Seller, acting in good faith and at arm's length, actually receives, or has contracted to receive, for the sale of the Deficiency Quantity at the agreed Delivery Point less any additional transportation and other costs and expenses incurred by Seller in connection with the sale of such Natural Gas. "Required Delivery Quantity" means the amount of MMBtus of Natural Gas to be delivered and received during a given Delivery Month pursuant to this Agreement as agreed upon in the Confirmation Letter. "Taxes" means all ad valorem, property, occupation, severance, production, gathering, pipeline, utility, gross production, sales, use, excise, transaction and any other governmental charges and assessments, other than taxes based on net income or net worth. "Termination Date" means either the Accelerated Termination Date or the Early Termination Date, as the case may be. 3 32 "Termination Payment" shall have the meaning given such term in Section 5.03. "United States Dollars", "U.S. Dollars", or "U.S. $" means the lawful currency of the United States of America in immediately available funds. "Unpaid Amounts" means, with respect to any Termination Date, the aggregate of all amounts that became payable (whether or not due) to Purchaser hereunder prior to the occurrence of such Termination Date and that remain payable (whether or not due) as at such Termination Date, together with interest thereon from (and including) the date such amounts became due and payable to (but excluding) such Termination Date at the U.S. Base Rate. "U.S. Base Rate" means, at any time, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall at all times be equal to the highest of: (a) the rate of interest announced publicly by The Chase Manhattan Bank in New York, New York, from time to time, as its prime commercial lending rate; or (b) one percent per annum above the Federal Funds Rate in effect from time to time. In the event there is any Unpaid Amount, Purchaser will use reasonable efforts to inform Seller of changes in the U.S. Base Rate promptly upon the occurrence of such changes. Section 1.02 Headings. The division of this Agreement into Articles and Sections and the insertion of an index and headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms "this Agreement", "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular Article, Section, paragraph, Schedule or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles, Sections and paragraphs are to Articles, Sections and paragraphs of this Agreement. Section 1.03 Number. Words importing the singular number shall include the plural and vice versa, and words importing the masculine gender shall include the feminine and neuter genders and vice versa. Section 1.04 Non-Business Days. Whenever any action to be taken hereunder shall be stated to be required to be taken or any payment to be made hereunder shall be stated to be due on a day other than a Business Day, unless otherwise specifically provided for herein, such payment shall be made or such action shall be taken on the next succeeding Business Day if the due date was a Sunday or a NYMEX or New York bank holiday which occurs on a Monday or on the last preceding Business Day if the due date was a Saturday or a NYMEX or New York bank holiday other than a Monday, and in the case of the payment of any monetary amount, the extension or curtailment of time shall be taken into account for the purposes of computation of interest or fees thereon. ARTICLE II - SALE AND PURCHASE OF NATURAL GAS Section 2.01 Sale and Purchase of Natural Gas. (a) On or before September 30, 1997, Purchaser and Seller shall agree upon and execute a letter described in this Section 2.01 (such letter being the "Confirmation Letter"). The Confirmation Letter shall specify a mutually acceptable Prepaid Price (which shall be approximately U.S. $35,000,000), the date or dates on which the Prepaid Price shall be paid, and for each Delivery Month, the Required Delivery Quantity, and the proportion thereof to be delivered and received at each 4 33 Delivery Point, each as mutually agreed by Purchaser and Seller. On the date or dates specified for such purpose in the Confirmation Letter, Purchaser shall pay to Seller the Prepaid Price by wire transfer of immediately available funds to such account or accounts as Seller may designated in writing, provided that the conditions precedent set out in Annex 1 have been satisfied by Seller and no Event of Default or Event of Change shall have occurred. (b) In consideration of the payment to Seller of the Prepaid Price, Seller hereby agrees to sell and deliver, or cause to be delivered, to Purchaser or to its account in each Delivery Month, at the Delivery Point, the Required Delivery Quantity of Natural Gas on the terms and conditions set forth in this Agreement; and Purchaser hereby agrees to accept delivery of such Natural Gas. Payment of the Prepaid Price on the date or dates set forth in the Confirmation Letter shall constitute payment in full of the purchase price of all quantities of Natural Gas to be delivered hereunder. (c) Seller has advised Purchaser that Seller intends to satisfy its obligations under this Agreement from various oil and gas interests that it anticipates acquiring either through the acquisition of properties, such as the Elk Hills Properties, or through the future acquisition of Natural Gas that may be owned or acquired by one or more affiliates of Seller or from third parties. Seller has further advised the Purchaser that if Seller is successful in acquiring interests in the Elk Hills Properties, its reserves and deliverable volumes of Natural Gas will increase substantially. In recognition of these facts, Purchaser and Seller have agreed that the initial Confirmation Letter will contemplate a delivery schedule without giving effect to Seller's acquisition of any interests in the Elk Hills Properties or other similar proved oil and gas properties. Seller has requested, and Purchaser has agreed, that if Seller acquires or is awarded the bid to acquire oil and gas interests in the Elk Hills Properties or other similar oil and gas properties, Purchaser and Seller will, if requested by Seller, negotiate in good faith to amend the Confirmation Letter to provide for a longer period of time for the delivery of quantities of Natural Gas under this Agreement; provided that if the acquisition of the Elk Hills Properties is not consummated by May 30, 1998, the parties will negotiate in good faith to re-amend the Confirmation Letter to provide for a delivery schedule of ratable deliveries for the undelivered Natural Gas over the remaining period of calendar year 1998. Unless otherwise agreed, no additional Prepaid Price will be due, nor will any portion of the Prepaid Price be repaid to Purchaser, as a result of such amendment, but the Delivery Month, Delivery Point(s), Required Delivery Quantity, and the proportion to be delivered at each Delivery Point shall be modified in a mutually acceptable manner to give effect to prevailing prices for deliveries of Natural Gas under the modified delivery schedule. If the Confirmation Letter is amended, all references in this Agreement to the Confirmation Letter shall, unless otherwise agreed, refer to the Confirmation Letter as so amended. If Purchaser or Seller are unable to agree on a modification to the original Confirmation Letter within 30 days of such request, Seller shall continue to be required to deliver the quantities of Crude Oil when and contemplated in the initial Confirmation Letter. If the initial Confirmation Letter has been amended and is then required to be re-amended in accordance with this Section 2.01(c), then the parties agree to determine in good faith the amount that would be required to be paid to or by a party at the time of the effective date of the re-amendment to the Confirmation Letter in consideration of an agreement by a market dealer to enter into a transaction with a financially viable and reputable party (a "Replacement Transaction") that would have the effect of preserving for such party the economic equivalent of any payment (assuming satisfaction of all conditions precedent) to or from a floating price payor under a standard International Swaps and Derivatives Association, Inc. (formerly known as International Swap Dealers Association, Inc.) Natural Gas commodity price swap entered into at the effective time of the first amendment to the Confirmation Letter under this Section 2.01(c) (the "First Amended Confirmation") with respect to the volume of Natural Gas 5 34 contemplated to be delivered at the effective time of the First Amended Confirmation having the Natural Gas pricing and delivery point used for purposes of the First Amended Confirmation as the fixed prices for such swap and settlement dates and notional volumes of Natural Gas that are parallel to the Delivery Months and the Required Delivery Quantities under the First Amended Confirmation. If the amount so determined for the Replacement Transaction would be a payment by the dealer to the floating price payor, such amount shall be paid by Purchaser to Seller in immediately available funds as the agreed consideration for the re-amendment to the Confirmation Letter. If the amount so determined for the Replacement Transaction would be a payment to the dealer by the floating price payor, such amount shall be paid by Seller to Purchaser as the agreed consideration for the re-amendment to the Confirmation Letter. The determination of such amount shall be made on the basis of quotations from Reference Market-makers (as defined in the International Swaps and Derivatives Association, Inc., form Master Agreement (Multi- currency--Cross Border, Version 1992)) in a manner substantially similar to that provided for under such form. In such case, each quotation by a Reference Market-maker will be for an amount, if any, that would be paid to or by the floating price payor in consideration of an agreement between such party and the quoting Reference Market-maker to enter into a Replacement Transaction. If more than three quotations are provided, the agreed amount will be the arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values. If exactly three quotations are provided, the agreed amount will be the quotation remaining after disregarding the highest and lowest quotations. If more than one quotation has the same highest value or lowest value, then one of such quotations shall be disregarded. (d) All payments under this Agreement by Seller or Purchaser shall be made by wire transfer in immediately available funds to an account designated by the party entitled to receive such payment, with such designation to be made at least two business days prior to the date on which this payment is to be made. Section 2.02 Measurement and Quality. Natural Gas delivered to a specific Delivery Point hereunder shall be measured by the operator of the Delivery Point in accordance with its standard practices. All such Natural Gas shall meet or exceed the requirements of Purchaser's transporter receiving gas at the Delivery Point, including, without limitation, requirements of quality, composition, temperature and pressure. Section 2.03 Delivery and Receipt of Natural Gas. (a) Seller agrees to deliver to Purchaser, and Purchaser agrees to accept delivery from Seller in each Delivery Month at the Delivery Point determined pursuant to this Agreement, the Required Delivery Quantity of Natural Gas required to be delivered under the Confirmation Letter in such Delivery Month. (b) Seller and Purchaser shall take such action as shall be necessary to properly schedule the delivery and receipt of such Natural Gas at the Delivery Point in each Delivery Month in compliance with all rules, regulations and procedures applicable at the Delivery Point. (c) Each Delivery Month, Seller shall arrange for delivery, and Purchaser shall arrange for receipt, of Natural Gas to begin at the Delivery Point no later than the first day of the Delivery Month and to be completed no later than the last calendar day of the Delivery Month. All deliveries and receipts shall be at hourly and daily rates that are as uniform as possible over the course of the Delivery Month in accordance with generally accepted pipeline scheduling practices. 6 35 Section 2.04 Payment of Fees. Seller shall obtain and pay all costs in connection with transportation of the Natural Gas to the Delivery Point and Purchaser shall obtain and pay all costs in connection with transportation of the Natural Gas from the Delivery Point. Seller shall be responsible for the payment of all hub fees (whether charged to Seller or Purchaser) payable in connection with delivery of Natural Gas hereunder at the Delivery Point. Seller shall not be responsible for any insurance, storage, transportation or other costs in respect of the period after title to any Natural Gas delivered hereunder has passed to Purchaser in accordance with Section 2.08 of this Agreement. Purchaser shall not be responsible for any insurance, storage, transportation or other costs in respect of the period prior to the time title to any Natural Gas delivered hereunder has passed to Purchaser in accordance with Section 2.08 of this Agreement. Section 2.05 Delivery Points upon Force Majeure; Alternate Delivery Points. (a) Seller is obligated to deliver to Purchaser and Purchaser is obligated to receive from Seller, at the Delivery Point, the Required Delivery Quantity of Natural Gas in accordance with the terms and conditions of this Agreement. If as the result of a Force Majeure, either (i) Seller is unable, after using all reasonable business efforts, to deliver the Required Delivery Quantity of Natural Gas to Purchaser at the Delivery Point in the proportions agreed upon pursuant to this Agreement or (ii) Purchaser is unable, after using all reasonable business efforts, to receive the Required Delivery Quantity of Natural Gas from Seller at the Delivery Point in the proportions agreed upon pursuant to this Agreement, then Seller shall be obligated to deliver and Purchaser shall be obligated to receive, the relevant Required Delivery Quantity of Natural Gas at a mutually acceptable comparable delivery point or points with mutually acceptable adjustments for quality and location. (b) Seller may elect to deliver Natural Gas at an alternate delivery point other than the Delivery Point which alternate delivery point may be any of the following locations: (i) Henry Hub or (ii) Tennessee Gas Transmission, Zone 1; provided that Seller has given Purchaser written notice of its election no later than five (5) Business Days before the end the calendar month preceding the Delivery Month in which it proposes to make delivery at such alternate delivery point. If there is transportation cost differential associated with delivery of such Natural Gas at such alternate delivery point (as measured against delivery at the Transco Pipeline (upstream of Station 65), Purchaser shall prepare and deliver to Seller, within five (5) Business Days after the end of the applicable Delivery Month a certificate setting out the calculation of the transportation cost differential accompanied by reasonably available back-up documentation therefor. Any such certificate shall, absent manifest error, be conclusive evidence of the amount of such transportation cost differential. If Seller owes Purchaser compensation pursuant to this Section 2.05(b), Seller shall pay Purchaser such amount within five (5) Business Days following its receipt of Purchaser's certificate. If Purchaser owes Seller compensation pursuant to this Section 2.05(b), Purchaser shall pay Seller amount on the next succeeding Payment Date. (c) During any Delivery Month, Seller may elect to deliver Natural Gas in excess of the Required Delivery Quantity for such Delivery Month by giving Purchaser not less than two (2) Business Day's prior written notice; provided that Purchaser may decline to accept such excess volumes if it determines, in its sole discretion, that no readily available market exists for such excess volumes, that such volumes are too small to be readily marketed or that it is uneconomical for it to accept such excess volumes. If Purchaser wishes to decline Seller's election, it shall give Seller written notice within one (1) Business Day of its receipt of Seller's notice. If Purchaser accepts Seller's election, the excess volume so delivered shall be allocated on a pro rata basis to reduce the Required Delivery Quantity for each of the remaining Delivery Months, commencing on the next succeeding 7 36 Delivery Month. Purchaser shall promptly furnish to Seller an amendment to the Confirmation Letter evidencing such new Required Delivery Quantities. Section 2.06 Failure of Delivery or Receipt; Transportation and Balancing. (a) (i) Without prejudice to Articles V and VI, if as a result of an event of Force Majeure, Seller is unable to meet its delivery obligation in respect of a Delivery Month at the Delivery Point or at a mutually satisfactory comparable delivery point or points (in which case Seller shall be deemed the "Responsible Party"), then Seller shall pay to Purchaser, as liquidated damages, the Replacement Value of the Deficiency Quantity of Natural Gas in respect of that Delivery Month. The Replacement Value shall be paid to Purchaser no later than the Payment Date next following such Delivery Month, and Purchaser will accept such payment in lieu of Natural Gas not delivered in such Delivery Month. Where Seller is unable to meet its acceptance obligation as aforesaid, Purchaser shall use all reasonable efforts to minimize the Replacement Value of any Deficiency Quantity. If the Replacement Value is based on the price Purchaser pays to replace the Deficiency Quantity, Purchaser shall prepare and deliver to Seller, within five (5) Business Days after the end of the applicable Delivery Month, a certificate setting out the calculation of the Replacement Value accompanied by reasonably available back-up documentation therefor. Any such certificate shall, absent manifest error, be conclusive evidence of the amount due in respect of the Replacement Value. Purchaser shall notify Seller as soon as possible of any anticipated inability to perform all or any portion of its obligations hereunder. (ii) Without prejudice to Article VI, if as a result of an event of Force Majeure, Purchaser is unable to meet its obligation to accept delivery in respect of a Delivery Month at the Delivery Point or at a mutually satisfactory comparable delivery point or points (in which case Purchaser shall be deemed the "Responsible Party"), then Seller shall pay to Purchaser, in lieu of delivery of the Required Delivery Quantity, the Replacement Value of the Deficiency Quantity of Natural Gas in respect of that Delivery Month. The Replacement Value shall be paid to Purchaser no later than the Payment Date next following such Delivery Month, and Purchaser will be required to accept such payment in lieu of Natural Gas not delivered in such Delivery Month. Where Purchaser is unable to meet its acceptance obligation as aforesaid, Seller shall use all reasonable efforts to maximize the Replacement Value of any Deficiency Quantity. If the Replacement Value is based on the price Seller receives for the Deficiency Quantity, Seller shall prepare and deliver to Purchaser, within five (5) Business Days after the end of the applicable Delivery Month, a certificate setting out the calculation of the Replacement Value accompanied by reasonably available back-up documentation therefor. Any such certificate shall, absent manifest error, be conclusive evidence of the amount due in respect of the Replacement Value. Purchaser shall notify Seller as soon as possible of any anticipated inability to perform all or any portion of its obligations hereunder. (b) In the event that (i) Seller or Seller's transporter inadvertently delivers more or less than the Required Delivery Quantity for any Delivery Month, or (ii) Purchaser or Purchaser's transporter inadvertently receives more or less than the Required Delivery Quantity for any Delivery Month, such overages or underages shall be corrected or adjusted in cash or Natural Gas as the parties may agree or in accordance with applicable tariff provisions; and the Responsible Party will be liable to the other party for any associated pipeline penalties or cashouts. Each party shall notify the other as promptly as possible of any changes in its rate of delivery or receipt of Natural Gas at the Delivery Point and take all reasonable actions necessary to avoid the incurrence of pipeline penalties and imbalances. 8 37 (c) Should either party receive an operational flow order ("OFO") or other order or notice from a transporter requiring action to be taken in connection with this Agreement or Natural Gas flowing under this Agreement, such party shall immediately notify the other party of the OFO and promptly provide the other party a copy of same by facsimile. The parties shall take all actions required by the OFO within the time prescribed therein. Each party shall indemnify, defend and hold harmless the other party from any damages or liability, including, without limitation, all non-compliance penalties and attorneys' fees, associated with an OFO (i) of which the indemnifying party failed to give the indemnified party the notice required hereunder or (ii) under which the indemnifying party failed to take the action required by the OFO within the time prescribed therein. (d) If a party is unable to perform any of its obligations to deliver or receive gas hereunder as a result of an event of Force Majeure, such party shall give notice and full particulars of such event of Force Majeure to the other party as soon as reasonably possible and shall take all reasonable actions necessary to remedy the event of Force Majeure. Section 2.07 Exclusive Remedy. It is expressly agreed, except as provided in Sections 5.02, 5.03, 6.02 and 6.03, that payments made in accordance with Section 2.06 hereof shall constitute the exclusive remedies available to Seller and Purchaser for nondelivery, nonacceptance, over-delivery or over-acceptance of Natural Gas. To the fullest extent permitted by applicable law, neither party shall be liable for any punitive, exemplary, incidental, consequential, indirect or direct (other than as set forth in Section 2.06) or other damages, in tort, contract or otherwise in respect thereof. Section 2.08 Possession, Title and Risk. Possession of and title to Natural Gas delivered pursuant hereto shall pass from Seller to Purchaser at the Delivery Points when the Natural Gas is accepted by the pipeline for transport for Purchaser's account and is recorded by the proper metering device. Until such time, Seller shall be deemed to be in control and possession of, have title to and be responsible for such Natural Gas and, after such time, Purchaser shall be deemed to be in control and possession of, have title to and be responsible for such Natural Gas. Section 2.09 Royalties. Seller shall at all times have the obligation to make settlements for all royalties and payments to mineral and royalty owners and all other Persons having an ownership interest in the Natural Gas delivered by Seller to Purchaser hereunder. Seller hereby agrees to indemnify Purchaser and save it harmless from all suits, actions, debts, accounts, damages, costs, losses and expenses arising from or out of adverse claims of any and all Persons in respect of royalties, taxes, license fees or charges thereon which are applicable before the title passes to Purchaser or which may be levied and assessed upon Seller in respect of a sale of the Natural Gas to Purchaser. Section 2.10 Taxes. Seller is liable for and shall pay, cause to be paid or reimburse Purchaser if Purchaser shall have paid, all Taxes applicable to the Natural Gas sold hereunder prior to the time title to the Natural Gas has passed to Purchaser, unless allocated to Purchaser as hereinafter provided. Purchaser is liable for and shall pay, cause to be paid or reimburse Seller if Seller shall have paid, all Taxes applicable to the Natural Gas sold hereunder at or after the time title to the Natural Gas has passed to Purchaser, applicable to the sale hereunder as a result of any subsequent sale or use of the Natural Gas by Purchaser, or imposed on or collected from Purchaser by law. Both parties shall use reasonable efforts to administer this Agreement and implement the provisions in accordance with their intent to minimize Taxes. Purchaser represents that it is engaged in the business of reselling the Natural Gas delivered under this Agreement and Purchaser is purchasing the Natural Gas for resale to third parties, and accordingly Purchaser is entitled to purchase the Natural Gas hereunder free of any Taxes. Purchaser shall provide Seller with a certificate of exemption or other reasonably satisfactory 9 38 evidence of exemption promptly after execution of this Agreement. For each Delivery Month during the term of this Agreement, Purchaser shall provide Seller appropriate evidence that the Required Delivery Quantity of Natural Gas was resold to a third party in accordance with the sale for resale exemption under applicable state law. Each party agrees to cooperate with obtaining any exemption from or reduction of Tax upon request by the other party. Section 2.11 No Warranty. PURCHASER ACKNOWLEDGES THAT IT HAS ENTERED INTO THIS AGREEMENT AND IS CONTRACTING FOR THE NATURAL GAS TO BE SUPPLIED BY SELLER BASED SOLELY UPON THE EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES HEREIN SET FORTH (including Section 2.02) AND, SUBJECT TO SUCH COVENANTS, REPRESENTATIONS AND WARRANTIES (including Section 2.02), ACCEPTS SUCH NATURAL GAS "AS IS, WHERE IS" AND "WITH ALL FAULTS." ARTICLE III - REPRESENTATIONS AND WARRANTIES Section 3.01 Representations and Warranties of Seller. Seller represents and warrants to Purchaser as follows: (a) Status and Authority. Seller is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to own its properties, to conduct its business as conducted at present and to execute, deliver and perform this Agreement. (b) Power and Authority. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated by this Agreement are within Seller's power and authority and have been duly authorized by all necessary corporate action. (c) Consents, Approvals, Etc.. No authorization, consent or approval of, or other action by, or notice to or filing with, any governmental authority, regulatory body or any other Person is required for the due authorization, execution, delivery or performance by Seller of this Agreement, or the consummation of the transactions contemplated by this Agreement, except those approvals which have been obtained, and those notices and filings which have been made, copies of all of which have been delivered to Purchaser. (d) Execution and Delivery. This Agreement has been duly executed and delivered to Purchaser by Seller and is the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general principles of equity. (e) Compliance with Laws. Neither the execution, delivery and performance by Seller of this Agreement nor the consummation of the transactions contemplated by this Agreement (i) does or will violate any provision of any Applicable Instrument of Seller or any Governmental Requirement or (ii) does or will result in or require the creation or imposition of any lien on any properties, assets or revenues of Seller. Seller is in compliance in all material respects with the Applicable Instruments of Seller and all Governmental Requirements applicable to Seller. (f) Investment Company. Seller is not an "investment company" subject to regulation under the Investment Company Act of 1940, as amended. 10 39 (g) Public Utility Holding Company. Seller is not, or is not subject to regulation as, a "holding company," a "subsidiary company" of a "holding company," an "affiliate" of a "holding company," or an affiliate" of a "subsidiary company" of a "holding company," in each case as such term is defined in the Public Utility Holding Company Act of 1935, as amended. (h) Ownership of Natural Gas. The Natural Gas to be delivered by Seller to Purchaser hereunder shall be delivered to Purchaser with good and marketable title thereto, free and clear of all liens, encumbrances or any other adverse claims whatsoever, including royalties and Taxes for which Seller is responsible under Sections 2.09 and 2.10. (i) Commercial Purpose. Seller has entered into this transaction for commercial purposes related to its business and not for speculative purposes. Seller has the capability, and intends, to make delivery of the Natural Gas to be delivered hereunder. Seller is selling the Natural Gas in the ordinary course of business. Seller is also acting as a principal and not as an agent, understands and acknowledges that the Purchaser has been and will be acting only on an arm's length basis and not as its agent, broker, advisor or fiduciary in any respect, is relying solely upon its own evaluation of this Agreement and the transactions contemplated hereby (including the present and future results, consequences, risks and benefits thereof, whether financial, accounting, tax, legal or otherwise) and upon advice from its own professional advisors, understands this Agreement and the transactions contemplated hereby and the risks associated therewith, has determined that those risks are appropriate for it, and is willing to assume those risks, and has not relied and will not be relying upon any evaluation or advice (including any recommendation, opinion or representation) from Purchaser or its affiliates or the representatives or advisors of Purchaser or its affiliates. Section 3.02 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller as follows: (a) Corporate Status and Authority. Purchaser is a company incorporated under the laws of Jersey and has all necessary corporate power and authority to carry on its business as now being conducted by it. Purchaser has full power and authority to enter into this Agreement and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with the terms hereof. (b) Valid Authority. Purchaser has taken all necessary corporate action to authorize the creation, execution, delivery and performance by it of this Agreement and for it to observe and perform the provisions of this Agreement in accordance with its terms. (c) Validity of Documents and Enforceability. This Agreement constitutes a valid and legally binding obligation of Purchaser enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity. Neither the execution and delivery of this Agreement nor compliance with the terms and conditions hereof by Purchaser (i) will result in a violation of the terms of any Applicable Instrument of Purchaser or (ii) requires any approval or consent of any governmental authority or agency having jurisdiction except such as has already been obtained. (d) Commercial Purpose. Purchaser has entered into this transaction for commercial purposes related to its business in conjunction with its line of business and not for speculative purposes. 11 40 Purchaser has the capacity, and intends, to take delivery of the Natural Gas to be delivered hereunder. Purchaser is acquiring the Natural Gas in the ordinary course of business. ARTICLE IV - COVENANTS Section 4.01 Affirmative Covenants of Seller. Seller covenants and agrees with Purchaser that so long as any obligation of Seller to deliver Natural Gas or to make any payment is outstanding hereunder: (a) Compliance with Laws, etc.. Seller will comply with all Governmental Requirements applicable to the performance of Seller's obligations hereunder, except where noncompliance therewith would not have a material adverse effect on Seller. Seller will comply in all material respects with the Applicable Instruments of Seller. (b) Notice of Event of Default. Seller shall notify Purchaser of the occurrence of any event which with the passage of time or the giving of notice, or both, would be an Event of Default or an Event of Change promptly after becoming aware of the same. (c) Qualification. Seller will be duly qualified to do business as a foreign corporation and will be in good standing under the laws of all jurisdictions in which the failure to be so qualified could have a material adverse effect on Seller by or before the first Delivery Month. (d) Letter of Credit. If the Confirmation Letter is amended pursuant to Section 2.01(c), Seller shall provide a letter of credit as contemplated in that certain letter dated September 26, 1997 among Chase Securities, Inc., The Chase Manhattan Bank and Guarantor. ARTICLE V - EVENTS OF DEFAULT AND EARLY TERMINATION Section 5.01 Events of Default. Each of the following events shall constitute an "Event of Default" by Seller under this Agreement: (a) Seller shall (i) fail to deliver the Required Delivery Quantity of Natural Gas to the Delivery Point in accordance with the terms of this Agreement, and (ii) if such failure is the result of an event of Force Majeure, fail to make a payment of the Replacement Value in respect thereof in accordance with the provisions of Section 2.06(a) and such failure is not remedied within one (1) Business Day; or (b) Seller shall fail to pay any amounts due to Purchaser in accordance with the terms of Section 2.05(b) of this Agreement and such failure is not remedied within one (1) Business Day after the Business Day on which such payment is due; or (c) Seller shall fail to perform or observe any material term, covenant or agreement herein contained on its part to be performed or observed (other than any term, covenant or agreement whose breach or default in performance is specifically dealt with elsewhere in this Section 5.01) and such failure shall remain unremedied for twenty-five (25) days after notice thereof to Seller by Purchaser; or (d) Seller shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of 12 41 creditors; or any proceeding shall be instituted by or against Seller seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property, and in the case of any such proceeding instituted against it (but not yet instituted by it), shall remain undismissed or unstayed for a period of forty-five (45) days or Seller shall take any corporate action to authorize any of the actions set forth above in this Section 5.01(d); or (e) any representation or warranty made by Seller in this Agreement shall prove to have been incorrect in any material respect when made or when deemed made; or (f) Seller shall fail to deliver Margin (as defined in the Margin Agreement) in accordance with its obligations under the second sentence of Section 2 of the Margin Agreement and such failure is not remedied within one (1) Business Day after notice of such failure is given to Seller by Purchaser; or (g) Seller shall fail to perform or observe any term, covenant or agreement (other than with respect to its obligations under the second sentence of Section 2 thereof) contained in the Margin Agreement on its part to be performed or observed and such failure is not remedied within thirty (30) days notice thereof to Seller by Purchaser; or (h) an Event of Default under the Guaranty Agreement shall occur and be continuing or an Oil Contract Event of Default occurs. Section 5.02 Early Termination by Purchaser. If at any time an Event of Default has occurred and is continuing, Purchaser may, by not more than five (5) Business Days notice to Seller specifying the relevant Event of Default, designate a Business Day not earlier than the Business Day such notice is effective as an early termination date ("Early Termination Date"); provided, however, that if an Event of Default pursuant to Section 5.01(d) shall have occurred, the Early Termination Date shall occur immediately on the occurrence of such Event of Default without the need for Purchaser to give any prior notice. Upon the designation or occurrence of an Early Termination Date, the obligation of Seller to make any further deliveries of Natural Gas to Purchaser under this Agreement shall terminate and Seller shall pay to Purchaser the Termination Payment together with any Unpaid Amounts. All amounts payable under this Section 5.02 shall become due on the Early Termination Date and shall be payable on the Business Day immediately following delivery by Purchaser of the statement required pursuant to Section 5.03(c). Such amount will be paid, together with (to the extent permitted by applicable law) interest thereon (before as well as after judgment) from (and including) the Early Termination Date to (but excluding) the date such amount is paid, at the rate specified in Section 7.02. The parties agree that the Termination Payment is a reasonable pre-estimate of the damages which would be incurred by Purchaser as a result of an Event of Default and not a penalty. Section 5.03 Calculation of Termination Payment. (a) "Termination Payment" shall be the lowest amount determined on the basis of quotations from at least four Reference Dealers as the amount that would have been payable on the Termination Date by Purchaser in consideration of an agreement between Purchaser and the quoting Reference Dealer, and subject to such documentation evidencing agreement on price as they may in good faith agree, with the relevant Termination Date as the date of commencement of such agreement 13 42 that would have the effect of preserving for Purchaser the equivalent of the delivery obligations that, but for the occurrence of the relevant Termination Date, Seller would have been obligated to perform hereunder after such Termination Date. Purchaser will request each Reference Dealer to provide its quotation to the extent practicable as of the same time (without regard to different time zones) on the relevant Termination Date (or, if a Termination Date is deemed to occur, as of a time as soon thereafter as practicable). The time as of which such quotations are to be provided will be selected in good faith by Purchaser. (b) If the Termination Payment cannot be determined in accordance with Section 5.03(a), "Termination Payment" shall be an amount equal to the total amount required, as determined as of the relevant Early Termination Date by Purchaser in good faith, to compensate it for its direct actual losses and costs (including loss of bargain and reasonable legal fees and other out-of-pocket expenses) that it may incur as a result of the early termination of Seller's delivery obligations hereunder, including, without limitation, any damages, losses, or expenses incurred in obtaining, terminating, liquidating, reestablishing or employing hedges or related trading positions against Purchaser's position hereunder. (c) On or as soon as reasonably practicable following the occurrence of a Termination Date, Purchaser will calculate the Termination Payment and will provide Seller with a statement (1) showing, in reasonable detail, such calculations (including all relevant quotations) and (2) giving details of the relevant account to which the Termination Payment is payable. Any such statement shall, absent manifest error, be conclusive evidence of the amount due in respect of the Termination Payment. ARTICLE VI - EVENTS OF CHANGE AND ACCELERATED TERMINATION Section 6.01 Events of Change. Each of the following events shall constitute an "Event of Change" for the purposes of this Agreement: (a) the enactment, promulgation, execution or ratification of, or any change in or amendment to, any regulation or law (or the application or interpretation of any regulation or law, as determined by a court or regulatory authority of competent jurisdiction or as determined by the opinion of independent counsel mutually acceptable to Seller and Purchaser) that occurs after the date hereof which would result in the imposition of a Tax (other than an increase in the rate of a general tax on overall income) or of state or federal government royalties (in excess of those royalties currently in effect) or of price controls in a material amount by any government or taxing authority upon a party hereto with respect to delivery of, or acceptance of delivery of, Natural Gas under this Agreement or with respect to any cash payment made pursuant to Section 2.06 which in any case would materially and adversely affect the net cost to Seller or Purchaser of performing its obligations hereunder; or (b) the enactment, promulgation, execution or ratification of, or any change in or amendment to, any regulation or law (or the application or interpretation of any regulation or law, as determined by a court or regulatory authority of competent jurisdiction or as determined by the opinion of independent counsel mutually acceptable to Seller and Purchaser) that occurs after the date hereof which would result in the performance of any obligation of Seller to deliver Natural Gas or Purchaser to accept delivery of Natural Gas under this Agreement being unlawful; or (c) any one or more events of Force Majeure that occur and continue for a consecutive period of longer than ninety (90) days. 14 43 Section 6.02 Accelerated Termination. (a) During the continuation of an Event of Change contemplated by Section 6.01(a), both parties shall make reasonable efforts to make arrangements to avoid the imposition of any Tax contemplated by Section 6.01(a); provided that this Section 6.02 shall not impose on either party any obligation other than to negotiate in good faith to make such arrangements as will not adversely affect the parties. (b) During the continuation of any Event of Change, and if any arrangement is not, or is not capable of being, made pursuant to Section 6.02(a), then either party may designate an accelerated termination date ("Accelerated Termination Date") upon not less than two (2) and not more than ten (10) Business Days' notice to the other party. Upon the Accelerated Termination Date, the parties' obligations hereunder shall terminate, except for the obligations contained in Section 6.03 and Section 7.02. Section 6.03 Payments on Accelerated Termination. Upon the designation of an Accelerated Termination Date, Seller, at the option of Purchaser, shall either (i) deliver any Natural Gas otherwise deliverable hereunder to Purchaser, provided that such delivery of Natural Gas by Seller would not then be unlawful and Seller has the ability to make such delivery or (ii) Seller shall pay to Purchaser an amount equal to the Termination Payment plus any Unpaid Amounts. All amounts payable under this Section 6.03 shall become due on the Accelerated Termination Date and shall be payable on the fifth (5th) Business Day following delivery by Purchaser of the certificate of calculation of the Termination Payment contemplated by Section 5.03. Upon the occurrence of an Accelerated Termination Date, Purchaser may, in its sole discretion, elect either remedy set forth in this Section 6.03. Such remedies shall be Purchaser's sole remedy; provided that nothing herein shall affect a party's obligation to make payments of amounts which were due and owing (whether or not payable) on or prior to the occurrence of such Accelerated Termination Date. ARTICLE VII - MISCELLANEOUS Section 7.01 Notice. Any demand, notice or communication to be made or given hereunder shall be in writing and may be made or given by personal delivery or by transmittal by telecopy, rapifax or other electronic means of communication addressed to the respective party as follows: To Seller: Crystal Properties and Trading Company P.O. Box 50401 Henderson, Nevada 89016 Attention: Chief Financial Officer Telecopier No.: (702) 598-3651 Telephone No.: (702) 598-3738 15 44 with copy to: Fulbright & Jaworski, L.L.P. 1301 McKinney Street Suite 5100 Houston, Texas 77002 Attention: Curtis W. Huff Telecopier No.: (713) 651-5246 Telephone No.: (713) 651-5657 To Purchaser: Mahonia Limited 22 Grenville Street St. Helier Jersey, Channel Islands JE1 1BL Attention: Ian James Telecopier No.: 44-1534-609333 Telephone No.: 44-1534-609000 with copy to: The Chase Manhattan Bank 270 Park Avenue, 8th Floor New York, New York 10017 Attention: Alex Mintcheff Telecopier No.: (212) 834-6084 Telephone No.: (212) 834-2032 and Chase Securities Inc. 700 Travis -5 TCBN Houston, Texas 77002 Telecopier No.: (713) 216-4117 Telephone No.: (713) 216-4110 Attention: Paul Nidoh or to such other address or telecopy number or rapifax number as any party may from time to time notify the others in accordance with this Section 7.01. Any demand, notice or certification made or given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof, or, if made or given by electronic means of communication, on the date of such transmittal or if such date is not a Business Day, on the first Business Day following the transmittal thereof. Section 7.02 Interest on Overdue Amounts. If any monetary amounts payable under this Agreement are not paid when due, then such overdue amount shall bear interest for each day until paid in full, payable on demand, both before and after default, judgment, the Early Termination Date and the Accelerated Termination Date, at the U.S. Base Rate plus one and one-half percent per annum on the basis of the actual number of days elapsed and on the basis of a year of 360 days, as the case may be. 16 45 Such interest shall be determined daily and compounded monthly in arrears on the last day of each calendar month. Section 7.03 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws that would result in the application of the laws of a another jurisdiction. Section 7.04 Severability. In the event that one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law the validity, legality or enforceability of the remaining provisions hereof shall not be affected or impaired thereby. Each of the Sections of this Agreement is hereby declared to be separate and distinct. Section 7.05 Currency. All amounts expressed herein or therein in terms of money refer to the United States Dollar and all payments to be made hereunder shall be made in such currency. Section 7.06 Purchaser Not an Agent. Purchaser acknowledges and confirms that all purchases of Natural Gas hereunder are being made by it as a principal and that it is not acting as agent for any other Person in connection with purchases of Natural Gas hereunder. Section 7.07 Benefit of the Agreement. This Agreement shall inure to the benefit of and be binding upon Seller, Purchaser and their respective successors and assigns. Section 7.08 Assignment and Transfer. Except as expressly provided in this Section 7.08, neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Without the consent of Seller, Purchaser may assign this Agreement to any of its direct or indirect wholly owned subsidiaries, whether now existing or hereafter created and/or may assign this Agreement to any Person as security for any financing or hedging provided to Purchaser by such Person and such Person may exercise, upon default by Purchaser of its agreements with such Person, the rights of Purchaser hereunder. Upon notice to Seller of any such assignment, Seller agrees to substitute such assignee or successor corporation for Purchaser hereunder. Without the consent of Purchaser, Seller may (i) assign this Agreement to any direct or indirect wholly owned subsidiary of Guarantor or (ii) merge with any direct or indirect wholly owned subsidiary of Guarantor; provided, however, that (A) such subsidiary agrees to assume all obligations under this Agreement and the Margin Agreement, (B) such subsidiary is a corporation, limited liability company or limited partnership incorporated under the laws of a state in the United States, (C) no Event of Default would occur as the result thereof, and (D) the Guaranty Agreement remains in effect. Upon notice to Purchaser of any such assignment or merger, Purchaser agrees to substitute such assignee or successor for Seller hereunder. Section 7.09 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement, undertaking, declarations, commitments or representations, written or oral, in respect thereof. There are no unwritten oral agreements among the parties. Section 7.10 Amendments. This Agreement may not be modified or amended except by an instrument in writing signed by Purchaser and Seller or by their respective successors or permitted assigns. 17 46 Section 7.11 No Waivers, Remedies. No failure to exercise and no delay in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law except as otherwise expressly provided herein. Section 7.12 Time of the Essence. Time shall be of the essence of this Agreement. Section 7.13 Counterparts. This Agreement may be executed in counterparts, each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. Section 7.14 Margin Agreement. Seller's payment obligations under this Agreement are secured by the Margin Agreement, which Margin Agreement is hereby incorporated herein for all purposes. Section 7.15 Intent. The parties intend that this Agreement shall constitute a purchase and sale of inventoriable goods and a forward contract within the meaning of Section 556 of the United States Bankruptcy Code of 1978, as amended from time to time. Section 7.16 Disclosure of Information. In the event that Seller provides to Purchaser written confidential information belonging to Seller or its affiliates which has been denominated in writing as "confidential", Purchaser agrees to thereafter maintain such information in confidence in accordance with the standards of care and diligence that each utilizes in maintaining its own confidential information. This obligation of confidence shall not apply to such portions of the information which (i) are in the public domain, (ii) hereafter become part of the public domain without Purchaser breaching its obligation of confidence to Seller, (iii) are previously known by Purchaser from some source other than Seller, (iv) are hereafter developed by Purchaser without using Seller's information, (v) are hereafter obtained by or available to Purchaser from a third party who owes no obligation of confidence to Seller with respect to such information or through any other means other than through disclosure by Seller, (vi) are disclosed with Seller's consent, (vii) must be disclosed either pursuant to any Governmental Requirement or to Persons regulating the activities of Purchaser, or (viii) as may be required by law or regulation or order of any governmental authority in any judicial, arbitration or governmental proceeding. Further, Purchaser may disclose any such information to any independent petroleum engineers or consultants, any independent certified public accountants, any legal counsel employed by it in connection with this Agreement, including without limitation, the enforcement or exercise of all rights and remedies thereunder; provided, however, that it imposes on such Person to whom such information is disclosed the same obligation to maintain the confidentiality of such information as is imposed upon it hereunder. Notwithstanding anything to the contrary provided herein, this obligation of confidence shall cease three (3) years from the date the information was furnished, unless Seller requests in writing at least 30 days prior to the expiration of such three year period, that Purchaser maintain the confidentiality of such information for an additional three year period. Seller waives any and all other rights it may have to confidentiality as against Purchaser arising by contract, agreement, statute or law except as expressly stated in this Section. 18 47 IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the date first written above. CRYSTAL PROPERTIES AND TRADING COMPANY By: ----------------------------------- J.A. Ballew Vice President MAHONIA LIMITED By: ----------------------------------- Name: Title: 19 48 ANNEX 1 TO NATURAL GAS INVENTORY FORWARD SALE CONTRACT CONDITIONS PRECEDENT 1. The executed Margin Agreement. 2. The executed Guaranty Agreement. 3. An opinion of Fulbright and Jaworski, L.L.P., special counsel to Seller and Guarantor, in substantially the form set out in Exhibit A; an opinion of Lionel, Sawyer & Collins, Nevada counsel to the Seller. 4. A certificate of the Secretary or an Assistant Secretary of Seller setting forth (i) resolutions of its Board of Directors with respect to the authorization of Seller to execute and deliver the Agreement and the Margin Agreement and to enter into the transactions contemplated in those documents, (ii) the officers of such Person (y) who are authorized to sign such agreements and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with such agreements and the transactions contemplated hereby, (iii) specimen signatures of the authorized officers, and (iv) the articles of incorporation and by-laws of Seller, certified as being true and complete. Purchaser may conclusively rely on such certificate until it receives notice in writing from Seller to the contrary. 5. A certificate of the Secretary or an Assistant Secretary of Guarantor setting forth (i) resolutions of its board of directors with respect to the authorization of Guarantor to execute and deliver the Guaranty Agreement and to enter into the transactions contemplated in those documents, (ii) the officers of the Guarantor (y) who are authorized to sign such agreement and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with such agreement and the transactions contemplated hereby, (iii) specimen signatures of the authorized officers, and (iv) the articles or certificate of incorporation and bylaws of Guarantor, certified as being true and complete. Purchaser may conclusively rely on such certificate until it receives notice in writing from Seller to the contrary. 6. An executed security agreement and financing statement granting to the Purchaser a lien on the agreements evidencing the Hedged Volumes (as defined in the Margin Agreement). 7. Copy of the agreements evidencing the Hedged Volumes. Annex 1- i EX-10.2 3 GUARANTY AGREEMENT 1 EXHIBIT 10.2 GUARANTY AGREEMENT This Guaranty Agreement dated as of September 30, 1997, is made by CRYSTAL OIL COMPANY, a Louisiana corporation ("Guarantor"), in favor of MAHONIA LIMITED, a company incorporated under the laws of Jersey ("Beneficiary"). WHEREAS, Crystal Properties and Trading Company, a corporation organized under the laws of the State of Nevada ("Seller"), and Beneficiary have entered into the Forward Sale Contracts; WHEREAS, Seller is a wholly-owned Subsidiary of Guarantor; WHEREAS, pursuant to the Forward Sale Contracts, Seller agrees to deliver to Beneficiary certain volumes of Crude Oil and Natural Gas deliverable at various locations; and WHEREAS, the guaranties provided in this Agreement are reasonably expected to benefit, directly or indirectly, Guarantor; and it is in the best interest of Guarantor to provide the guaranties set forth hereunder, and such guaranties are necessary or convenient to the conduct, promotion or attainment of the business of Guarantor. NOW, THEREFORE, in consideration of the premises and in order to induce Beneficiary to enter into the Forward Sale Contracts with Seller, Guarantor hereby agrees as follows: ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS Section 1.01 Certain Defined Terms. As used in this Agreement (including the recitals), the following terms shall have the following meanings: "Agreement" shall mean this Guaranty Agreement, as the same may be amended or modified from time to time. "Events of Default" shall have the meaning assigned such term in Section 5.01. "Excepted Liens" shall mean: (i) Liens for taxes, assessments or other governmental charges or levies not yet due or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained; (ii) operator's, vendors', carriers', warehousemen's, repairmen's, mechanics', workmen's, materialmen's, construction or other like Liens arising by operation of law in the ordinary course of business or incident to the exploration, development, operation and maintenance of oil and gas properties or statutory landlord's Liens, each of which is in respect of obligations that have not been outstanding more than 90 days or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP; (iii) any Liens reserved in leases, farmouts, gas sales contracts or similar agreements for rent or royalties and for compliance with the terms of the agreements or leases in the case of leasehold estates, to the extent that any such Lien referred to in this clause does not materially impair the use of the property covered by such Lien for the purposes for which such property is held by Guarantor or any Subsidiary or materially impair the value of such property subject thereto; (iv) Liens created by this Agreement or the Forward Sale 2 Contracts; and (v) encumbrances (other than to secure the payment of borrowed money or the deferred purchase price of property or services), easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations in any rights of way or other property of Guarantor or any Subsidiary for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines for the removal of gas, oil, coal or other minerals or timber, and other like purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, and defects, irregularities, zoning restrictions and deficiencies in title of any rights of way or other property which in the aggregate do not materially impair the use of such rights of way or other property for the purposes of which such rights of way and other property are held by Guarantor or any Subsidiary or materially impair the value of such property subject thereto. "Forward Sale Contracts" shall mean (i) the Crude Oil Forward Sale Contract dated of even date herewith between Seller and Beneficiary, as the same may be amended or modified from time to time; and (ii) the Natural Gas Forward Sale Contract dated of even date herewith between Seller and Beneficiary, as the same may be amended or modified from time to time. "Margin Agreement" shall mean the Margin Agreement dated of even date herewith between Seller and Beneficiary, as the same may be amended or modified from time to time. "Obligations" shall have the meaning assigned such term in Section 2.01(a). Section 1.02 Other Definitions. Other capitalized terms used in this Agreement, unless otherwise defined in Section 1.01, shall have the meaning given such terms in the Forward Sale Contracts and the Margin Agreement. Section 1.03 Accounting Terms. All accounting terms not specifically defined herein shall be constructed in accordance with, and certificates of compliance with financial covenants shall be based on, GAAP; provided, however, the financial statements and reports required pursuant to Section 4.01(b) shall be prepared in accordance with generally accepted accounting principles consistently applied except to the extent stated therein. ARTICLE II - GUARANTY Section 2.01 Guaranty. Guarantor hereby unconditionally guarantees to Beneficiary, the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all payment obligations associated with the performance obligations of Seller, now or hereafter existing under the Forward Sale Contracts, (all of such payment obligations under the Forward Sale Contracts, being referred to herein as the "Obligations"), and any and all expenses (including reasonable counsel fees and expenses) incurred by Beneficiary in enforcing any rights under this Guaranty, provided that all payments by Guarantor under this Section 2.01 shall be made in immediately available funds within five (5) Business Days following Beneficiary's demand therefor given in writing to Guarantor (which demand will set forth the basis and calculation of the amount for which demand is made). - 2 - 3 Section 2.02 Guaranty Absolute. Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Forward Sale Contracts. The liability of Guarantor under this Agreement shall be absolute and unconditional irrespective of: (a) any lack of validity or enforceability of the Forward Sale Contracts, the Margin Agreement or any other agreement or instrument relating thereto; (b) any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of the terms of the Forward Sale Contracts or the Margin Agreement or the rights of Beneficiary with respect thereto; (c) any change in the time, manner or place of performance or payment of, or in any other term of, the Obligations or any other amendment, extension or waiver of or any consent to departure from the Forward Sale Contracts or any Confirmation Letter; (d) the existence of, or any release or amendment or waiver of or consent to departure from, any other guaranty, for all or any of the Obligations; (e) the existence of, or any release or amendment or waiver of or consent to departure from the Margin Agreement; or (f) any assignment or merger by Seller permitted by any of the Forward Sale Contracts. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by Beneficiary for any reason, including, without limitation, the insolvency, bankruptcy or reorganization of Guarantor, Seller or otherwise, all as though such payment had not been made; and, in such event, Guarantor will pay to Beneficiary an amount equal to any such payment that has been rescinded or returned. This Guaranty shall be absolute and unconditional notwithstanding the occurrence of any event or the existence of any other circumstances which might constitute a defense available to a guarantor or Seller or a legal or equitable discharge of a surety or guarantor except indefeasible payment in full of the Obligations. The provisions of this paragraph will survive any release or termination of this Agreement. If and to the extent that Guarantor makes any payment to Beneficiary or to any other Person pursuant to or in respect of this Guaranty, any claim which Guarantor may have against Seller by reason thereof shall be subject and subordinate to the prior indefeasible payment in full in cash of the Obligations. Section 2.03 Waiver. Except as otherwise set forth herein, Guarantor hereby waives, to the extent permitted by law, promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations and this Agreement and any requirement that Beneficiary protect, secure, perfect or insure any collateral or exhaust any right or take any action against Seller or any other Person or any collateral. - 3 - 4 ARTICLE III - REPRESENTATIONS AND WARRANTIES Section 3.01 Representations and Warranties. Guarantor hereby represents and warrants as follows: (a) Existence. Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has all requisite corporate powers and governmental licenses, authorizations, consents and approvals required to own its properties and carry on its business as now conducted. (b) Authority. The execution, delivery and performance by Guarantor of this Agreement are within Guarantor's corporate powers, have been duly authorized by all necessary corporate action, and require, in respect of Guarantor, no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of law or regulation applicable to Guarantor or the certificate of incorporation or by-laws of Guarantor or any judgment, injunction, order, decree or material ("material" for the purposes of this representation meaning creating a liability of $5,000,000 or more) agreement binding upon Guarantor or result in the creation or imposition of any Lien on any asset of Guarantor. (c) Binding Obligations. This Agreement has been duly executed and delivered by Guarantor and is the legal, valid and binding obligation of Guarantor enforceable against Guarantor in accordance with its terms, except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity. (d) Financial Statements. (i) The audited consolidated balance sheet of the Guarantor and its Subsidiaries as of December 31, 1996, and the related audited consolidated statements of income, cash flows and changes in stockholders' equity accounts for the fiscal year then ended, and the unaudited consolidated balance sheet of the Guarantor and its Subsidiaries as of June 30, 1997, and the related unaudited consolidated statements of income, cash flows and changes in stockholders' equity accounts for the fiscal quarter then ended, copies of which have been delivered to Beneficiary, fairly present, in conformity with GAAP, except as otherwise expressly noted therein, the consolidated financial position of the Guarantor and its Subsidiaries as of such dates and their consolidated results of operations and changes in financial position for such fiscal periods, subject (in the case of the unaudited balance sheet and statements) to changes resulting from audit and normal year-end adjustments. (ii) Since December 31, 1996, and through the date hereof there has been no material adverse change in the business, consolidated financial position or consolidated results of operations of Guarantor and its Consolidated Subsidiaries, considered as a whole. (e) Litigation. Except as disclosed in the Guarantor's Form 10-K for the year ended December 31, 1996, any Form 8-Ks subsequently filed, or the Guarantor's Form 10-Q for the quarter ended June 30, 1997, which were delivered to the Beneficiary prior to the date hereof, there is no action, suit or proceeding pending against Guarantor or any of its Subsidiaries, or to the knowledge of Guarantor threatened against Guarantor or any of its Subsidiaries, before any court or arbitrator or any governmental - 4 - 5 body, agency or official in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business, consolidated financial position or consolidated results of operations of Guarantor and its Consolidated Subsidiaries taken as a whole or which in any manner draws into question the validity of this Agreement, the Forward Sale Contracts or the Margin Agreement. ARTICLE IV - COVENANTS Section 4.01 Affirmative Covenants. Guarantor covenants and agrees that, so long as any part of the Obligations shall remain unpaid, Guarantor will, unless Beneficiary shall otherwise consent in writing: (a) Compliance with Laws, Etc. Comply in all material respects with all applicable laws, rules, regulations and orders of any governmental authority to the extent non-compliance therewith would have a material and adverse effect on Guarantor and its Subsidiaries taken as a whole, such compliance to include, without limitation, paying before the same become delinquent all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith. (b) Reporting Requirements. Furnish to Beneficiary: (i) (1) promptly after the sending or filing thereof, a copy of each of the Guarantor's reports on Form 8-K (or any comparable form), (2) promptly after the filing or sending thereof, and in any event within 75 days after the end of each of the first three fiscal quarters of each fiscal year of the Guarantor, a copy of the Guarantor's report on Form 10-Q (or any comparable form) for such quarter, which report will include the Guarantor's quarterly unaudited consolidated financial statements as of the end of and for such quarter, and (3) promptly after the filing or sending thereof, and in any event within 135 days after the end of each fiscal year of the Guarantor, a copy of the Guarantor's annual report on form 10-K (or any comparable form) for such year, which annual report will include the Guarantor's annual audited consolidated financial statements as of the end of and for such year; (ii) simultaneously with the delivery of each of the annual or quarterly reports referred to in clause (i) above, a certificate of the chief financial officer or the chief accounting officer of the Guarantor in a form acceptable to the Beneficiary, (x) setting forth in reasonable detail the calculations required to establish whether a Trigger Event has occurred on the date of the financial statements contained in such report and (y) stating whether there exists on the date of such certificate any Event of Default or Trigger Event or event, which, with the giving of notice or lapse of time, or both, would constitute an Event of Default or Trigger Event, and, if so, setting forth the details thereof and the action which the Guarantor has taken and proposes to take with respect thereto; (iii) as soon as possible and in any event within five days after an executive officer of the Guarantor having obtained knowledge thereof, notice of 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, continuing on the date of such notice, and a statement of the chief financial officer of the Guarantor setting forth details of such Event of Default or event and the action which the Guarantor has taken and proposes to take with respect thereto; and - 5 - 6 (iv) such other information respecting the condition or operations, financial or otherwise relevant to this Agreement and the Forward Sale Contracts and Guarantor's ability to perform its obligations hereunder as Beneficiary may from time to time reasonably request. (c) Preservation of Corporate Existence, Etc. Preserve and maintain its legal existence, rights and franchises; provided, however, that this Section 4.01(c) shall not apply to any transactions or matters permitted by Section 4.02 or to the termination of rights or franchises of the Guarantor pursuant to any lease, sale, transfer or other disposition of assets by the Guarantor, and provided, further, that the Guarantor shall not be required to preserve any right or franchise if the Guarantor shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Guarantor and that the loss thereof is not disadvantageous in any material respect to the Beneficiary. (d) Ownership of Seller. Continue to be the direct or indirect beneficial owner of 100% of the capital stock of Seller. (e) Engineering Reports. (i) Not less than 90 days after each January 1st of each year, commencing January 1, 1998, Guarantor shall furnish to Beneficiary a Reserve Report, which shall be prepared by certified independent petroleum engineers or internally by Guarantor, at the option of the Guarantor. (ii) With the delivery of each Reserve Report, Guarantor shall provide to Beneficiary a certificate from a responsible officer certifying that, to the best of such officer's knowledge, in all material respects: (A) the information contained in the Reserve Report and any other information delivered in connection therewith is true and correct, and (B) except as set forth on an exhibit to the certificate, on a net basis there are no material gas imbalances, take or pay or other prepayments with respect to the Designated Fields which would require Seller to deliver hydrocarbons produced from such fields at some future time without then or thereafter receiving full payment therefor in excess of the volumes presold under the Forward Sale Contracts. (iii) Upon written request of Beneficiary, within 30 days after Guarantor's receipt of such request, Guarantor shall provide production reports by lease for the Designated Fields for the calendar month immediately preceding the month during which such request was made. Section 4.02 Negative Covenant. Guarantor covenants and agrees that, so long as any part of the Obligations shall remain unpaid, Guarantor will not, unless Beneficiary shall otherwise consent in writing: (a) Mergers. Merge or consolidate with or into, any Person, unless (i) Guarantor is the survivor either by operation of law or by agreement, or (ii) the surviving Person, if not Guarantor, is organized under the laws of the United States or a state thereof and assumes all obligations of Guarantor under this Agreement, provided, in each case that immediately after giving effect to such proposed transaction, no Event of Default or event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default would exist or result. - 6 - 7 (b) Liens. Create, incur, assume or permit to exist any Lien on its interests in the Designated Fields, except for Excepted Liens. (c) Business of Seller. Guarantor agrees that it will not permit Seller to materially change it business as contemplated in the Articles of Incorporation of Seller as in effect on the date hereof or permit Seller to amend its Articles of Incorporation at any time prior to January 20, 1999. (d) Working Capital. Guarantor agrees that it will maintain the amount of its Working Capital at not less than $12,000,000. ARTICLE V - EVENTS OF DEFAULT Section 5.01 Events of Default. An "Event of Default" shall exist if any of the following events shall occur and be continuing: (a) Any representation or warranty made by Guarantor under or in connection with this Agreement shall prove to have been incorrect in any material respect when made and such materiality is continuing; or (b) Guarantor shall fail to perform or observe any material term, covenant or agreement contained in this Agreement on its part to be performed or observed if such failure shall remain unremedied for twenty-five (25) days after written notice thereof shall have been given to Guarantor by Beneficiary; provided that such grace period shall not apply to Guarantor's payment obligations under Section 2.01; or (c) Guarantor or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Guarantor or any of its Subsidiaries seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), shall remain undismissed or unstayed for a period of forty-five (45) days; or Guarantor or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this Section 5.01(c); or (d) Any provision of this Agreement after execution and delivery thereof for any reason is not or ceases to be valid and binding on Guarantor, or Guarantor or any of its Subsidiaries shall so state in writing; or (e) Guarantor or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt which is outstanding in the principal amount of at least $5,000,000 in the aggregate, of Guarantor or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or other otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument - 7 - 8 relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment or as a result of the giving of notice of a voluntary prepayment), prior to the stated maturity thereof. ARTICLE VI - MISCELLANEOUS Section 6.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement nor consent to any departure by Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by Guarantor and Beneficiary. Section 6.02 Addresses for Notices. All notices and other communications provided for hereunder shall be in writing (including telecopier or cable communication) delivered, if to Guarantor, at its address at 229 Milam, Shreveport, Louisiana 71101, Attention: Chief Financial Officer (telecopier number (318) 677-5515; if to Beneficiary, at its address at 22 Grenville Street, St. Helier, Jersey, Channel Islands JE1 1BL, Attention: Ian James (Telecopier No.: 44-1534-609333), with a copy to: The Chase Manhattan Bank, 270 Park Avenue, 8th Floor, New York, New York 10017, Attention: Alex Mintcheff (telecopy number (212) 834-6084). All such notices and communications shall, if mailed, be effective three (3) days after being deposited in the mails, when sent by telecopier to Guarantor or Beneficiary to the telecopier numbers set forth above (or such other telecopy number specified by Guarantor or Beneficiary in a written notice to the other party) and receipt thereof is acknowledged by such party, or when delivered to a courier and written confirmation of delivery is received back from such courier. Section 6.03 No Waiver; Cumulative Rights and Remedies. No failure on the part of Beneficiary to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. Each of the rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law or in any other documents. Section 6.04 Continuing Guaranty. The obligations of Guarantor under Article II of this Agreement shall be continuing and (a) remain in full force and effect until indefeasible payment in full of the Obligations and all other amounts payable under this Agreement and the Forward Sale Contracts, (b) be binding upon Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by Beneficiary and its successors, transferees and assigns (including any person holding a security interest in Beneficiary's rights hereunder); and accordingly, "Beneficiary" shall be construed to include Beneficiary's successors, transferees, and assigns and holders of such security interests. Section 6.05 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 6.07 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to principles of conflicts of laws that would result in the application of the laws of another jurisdiction. Section 6.08 Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement. - 8 - 9 Section 6.09 Assignment. Neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Without the consent of Guarantor, Beneficiary may assign this Agreement to any Person as security for any financing or hedging provided to Beneficiary by such Person and such Person may exercise, upon default by Beneficiary of its agreements with such Person, the rights of Beneficiary hereunder. Upon notice to Guarantor of any such assignment, Beneficiary will agree to substitute the secured party for Beneficiary hereunder. - 9 - 10 IN WITNESS WHEREOF, Guarantor has caused this Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written. CRYSTAL OIL COMPANY By:_______________________ J.A. Ballew Senior Vice President - 10 - EX-11 4 COMPUTATION OF EARNINGS PER COMMON SHARE 1 EXHIBIT 11 CRYSTAL OIL COMPANY COMPUTATION OF INCOME PER COMMON SHARE (In Thousands Except Share and Per Share Amounts) (Unaudited)
Three Months Ended Nine Months Ended September 30 September 30 ------------------------- ------------------ 1997 1996 1997 1996 ----------- ----------- ----------- -------- Earnings per common share: Income from operations $ 163 $ 626 $ 1,472 $ 1,908 =========== =========== =========== =========== Weighted average of common shares outstanding 2,666,022 2,665,372 2,665,755 2,660,610 =========== =========== =========== =========== Earnings per common share $ .06 $ .23 $ .55 $ .72 =========== =========== =========== =========== Primary: (Including dilutive Common Stock equivalents) Income from operations $ 163 $ 626 $ 1,472 $ 1,908 Adjustments to income (net of income tax) - - - - ----------- ----------- ----------- ----------- Adjusted net income $ 163 $ 626 $ 1,472 $ 1,908 =========== =========== =========== =========== Weighted average of common and common equivalent shares: Outstanding 2,666,022 2,665,372 2,665,755 2,660,610 Assuming conversion or exercise of: Stock options, net of treasury shares 28,959 27,790 28,987 32,082 Senior preferred stock 33,274 33,274 33,274 33,274 ----------- ----------- ----------- ----------- 2,728,255 2,726,436 2,728,016 2,725,966 =========== =========== =========== =========== Per share amount: Net income $ .06 $ .23 $ .54 $ .70 =========== =========== =========== ===========
2 EXHIBIT 11 (continued) CRYSTAL OIL COMPANY COMPUTATION OF INCOME PER COMMON SHARE (In Thousands Except Share and Per Share Amounts) (Unaudited)
Three Months Ended Nine Months Ended September 30 September 30 ------------------------- ------------------------- 1997 1996 1997 1996 ----------- ----------- ----------- ----------- Fully-diluted: Income from operations $ 163 $ 626 $ 1,472 $ 1,908 Adjustments to income (net of income tax) - - - - ----------- ----------- ----------- ----------- Adjusted net income $ 163 $ 626 $ 1,472 $ 1,908 =========== =========== =========== =========== Weighted average of common shares: Outstanding 2,666,022 2,665,372 2,665,755 2,660,610 Assuming conversion or exercise of: Stock options, net of treasury shares 37,257 29,948 36,191 34,038 Senior preferred stock 33,274 33,274 33,274 33,274 ----------- ----------- ----------- ----------- 2,736,553 2,728,594 2,735,220 2,727,922 =========== =========== =========== =========== Per share amount: Net income $ .06 $ .23 $ .54 $ .70 =========== =========== =========== ===========
NOTE: See Note 3 of Notes to Consolidated Condensed Financial Statements. EX-27 5 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEET AT SEPTEMBER 30, 1997 AND THE CONSOLIDATED STATEMENT OF INCOME FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 9-MOS DEC-31-1997 JAN-01-1997 SEP-30-1997 40,745 36,765 1,405 71 0 79,050 111,764 8,261 285,373 3,842 148,629 0 148 27 132,727 285,373 10,447 13,317 0 4,386 0 24 2,442 2,417 945 1,472 0 0 0 1,472 0.55 0.54
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