EXHIBIT 10(p)
FOURTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of the 29th day of August, 1997, by and among PLAINS
RESOURCES INC., a Delaware corporation (the "Company"), ING (U.S.) CAPITAL
CORPORATION, f/k/a Internationale Nederlanden (U.S.) Capital Corporation, as
Agent ("Agent"), and the Lenders under the Original Agreement (as defined
herein).
W I T N E S S E T H:
WHEREAS, the Company, Agent and Lenders entered into that certain Third
Amended and Restated Credit Agreement dated as of April 11, 1996, as amended by
that certain First Amendment to Third Amended and Restated Credit Agreement
dated December 16, 1996, that certain Second Amendment to Third Amended and
Restated Credit Agreement dated March 7, 1997 and that certain Third Amendment
to Third Amended and Restated Credit Agreement July 18, 1997 (as amended, the
"Original Agreement") for the purposes and consideration therein expressed,
pursuant to which Lenders became obligated to make and made loans to the Company
as therein provided; and
WHEREAS, the Company, Agent and Lenders desire to amend the Original
Agreement for the purposes described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to the Company, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(S) 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this Fourth Amendment to Third Amended and Restated
Credit Agreement.
"Amendment Documents" means this Amendment.
"Credit Agreement" means the Original Agreement as amended hereby.
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ARTICLE II. -- Amendments
(S) 2.1. Investments. Section 8.10(c) of the Original Agreement is hereby
amended in its entirety to read as follows:
(c) loans, advances and other extensions of credit made after the
date hereof by the Company and its Subsidiaries to Subsidiaries of the
Company in the ordinary course of business, provided that (i) the aggregate
amount of such loans, advances and other extensions of credit by the
Company to any one of its Subsidiaries shall not exceed $5,000,000 at any
one time outstanding and (ii) the aggregate amount of such loans, advances
and other extensions of credit by the Company to its Subsidiaries taken as
a whole shall not exceed $5,000,000 at any one time outstanding; in
addition to the foregoing (1) the Company may make loans, advances or other
extensions of credit or capital contributions of up to $5,000,000 in the
aggregate to Plains Marketing and/or its Subsidiaries in connection with
acquisitions and other capital investments, (2) the Company may make
additional loans, advances or other extensions of credit of up to
$15,000,000 in the aggregate to Plains Marketing and/or its Subsidiaries,
the proceeds of which are used to finance purchases and physical storage of
crude oil that is fully hedged on the NYMEX and located in the Cushing,
Oklahoma storage facility or which is in transit in specified pipelines
approved by Majority Lenders and listed on Schedule 8.10(c) hereto, (3) the
Company (or Plains Marketing) may make capital contributions to PMCT as
provided in, and subject to the limitations contained in, Section 8.34, and
(4) so long as no Default shall have occurred and be continuing or would
exist after giving effect thereto, the Company may make Investments without
limitation in Xxxxxxx Resources, Inc., Xxxxxxx Resources, L.P., Calumet
Florida Inc. and Plains Illinois Inc.
(S) 2.2. Waiver and Consent - Investments. Prior to the date hereof the
Company made loans, advances or other extensions of credit or capital
contributions to Plains Marketing and/or its Subsidiaries in excess of
$5,000,000, in violation of Section 8.10(c)(1) of the Original Agreement.
Lenders hereby waive any Default or Event of Default occurring prior to the date
hereof as a result of the above-described violation of Section 8.10(c) of the
Original Agreement.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of the
date first above written when and only when (i) Agent shall have received, at
Agent's office, a counterpart of this Amendment executed and delivered by the
Company and each Lender, and (ii) Agent shall have additionally received all of
the following documents, each document (unless otherwise indicated) being dated
the date of receipt thereof by Agent, duly authorized, executed and delivered,
and in form and substance satisfactory to Agent:
(A) Officer's Certificate. A certificate of a duly authorized
officer of the Company to the effect that all of the
representations and warranties set forth in Article IV hereof are
true and correct at and as of the date thereof.
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(B) Supporting Documents. Such supporting documents as Agent may
reasonably request.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of the Company. In order to
induce Agent and Lenders to enter into this Amendment, the Company represents
and warrants to Agent and Lenders that:
(a) The representations and warranties contained in Section 7 of
the Original Agreement, are true and correct at and as of the time of the
effectiveness hereof, subject to the amendment of certain of the Schedules
to the Credit Agreement as attached hereto.
(b) The Company and the Subsidiaries are duly authorized to
execute and deliver this Amendment and the other Amendment Documents to the
extent a party thereto, and the Company is and will continue to be duly
authorized to borrow and perform its obligations under the Credit
Agreement. The Company and the Subsidiaries have duly taken all corporate
action necessary to authorize the execution and delivery of this Amendment
and the other Amendment Documents, to the extent a party thereto, and to
authorize the performance of their respective obligations thereunder.
(c) The execution and delivery by the Company and the
Subsidiaries of this Amendment and the other Amendment Documents, to the
extent a party thereto, the performance by the Company and the Subsidiaries
of their respective obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby, do not
and will not conflict with any provision of law, statute, rule or
regulation or of the certificate or articles of incorporation and bylaws of
the Company or any Subsidiary, or of any material agreement, judgment,
license, order or permit applicable to or binding upon the Company or any
Subsidiary, or result in the creation of any lien, charge or encumbrance
upon any assets or properties of the Company or any Subsidiary, except in
favor of Agent for the benefit of Lenders. Except for those which have been
duly obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by the Company or any Subsidiary of this Amendment
or any other Amendment Document, to the extent a party thereto, or to
consummate the transactions contemplated hereby and thereby.
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(d) When this Amendment and the other Amendment Documents have been
duly executed and delivered, each of the Basic Documents, as amended by
this Amendment and the other Amendment Documents, will be a legal and
binding instrument and agreement of the Company and the Subsidiaries, to
the extent a party thereto, enforceable in accordance with its terms,
(subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency and similar laws applicable to creditors' rights generally and
to general principles of equity).
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Basic Documents,
as they may be amended or affected by this Amendment and/or the other Amendment
Documents, are hereby ratified and confirmed in all respects. Any reference to
the Credit Agreement in any Basic Document shall be deemed to refer to this
Amendment also. The execution, delivery and effectiveness of this Amendment and
the other Amendment Documents shall not, except as expressly provided herein or
therein, operate as a waiver of any right, power or remedy of Agent or any
Lender under the Credit Agreement or any other Basic Document nor constitute a
waiver of any provision of the Credit Agreement or any other Basic Document.
(S) 5.2. Ratification of Security Documents. The Company, Agent and
Lenders each acknowledge and agree that any and all indebtedness, liabilities or
obligations arising under or in connection with the Notes are Obligations and is
secured indebtedness under, and is secured by, each and every Security Document
to which the Company is a party. The Company hereby re-pledges, re-grants and
re-assigns a security interest in and lien on every asset of the Company
described as collateral in any Security Document.
(S) 5.3. Survival of Agreements. All representations, warranties,
covenants and agreements of the Company herein and in the other Amendment
Documents shall survive the execution and delivery of this Amendment and the
other Amendment Documents and the performance hereof and thereof, including
without limitation the making or granting of each Loan, and shall further
survive until all of the Obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by the Company
or any Subsidiary hereunder, under the other Amendment Documents or under the
Credit Agreement to Agent or any Lender shall be deemed to constitute
representations and warranties by, or agreements and covenants of, the Company
under this Amendment and under the Credit Agreement.
(S) 5.4. Basic Documents. This Amendment and each of the other Amendment
Documents is a Basic Document, and all provisions in the Credit Agreement
pertaining to Basic Documents apply hereto and thereto.
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(S) 5.5. GOVERNING LAW. THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA IN ALL
RESPECTS, INCLUDING CONSTRUCTION, VALIDITY AND PERFORMANCE.
(S) 5.6. Counterparts. This Amendment and each of the other Amendment
Documents may be separately executed in counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to constitute one and the same Amendment or Amendment Document, as the
case may be.
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS RESOURCES INC.
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
ING (U.S.) CAPITAL CORPORATION,
f/k/a Internationale Nederlanden (U.S.) Capital
Corporation, individually as a Lender and as
Agent
By: /s/ XXXXXXXXXXX X. XXXXXX
------------------------------------
Xxxxxxxxxxx X. Xxxxxx, Vice President
BANKBOSTON, N.A., Lender
By: /s/ XXXXXXXX XXXXX
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
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DEN NORSKE BANK ASA, Lender
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ XXXXXXX X. XXXX
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
(f/k/a First Interstate Bank of Texas, N.A.),
Lender
By: /s/ XXX X. XXXXXX
------------------------------------
Xxx X. Xxxxxx, Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Lender
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
COMERICA BANK-TEXAS, Lender
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
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CONSENT AND AGREEMENT
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Each of the undersigned Subsidiary Guarantors hereby consents to the
provisions of this Amendment and the transactions contemplated herein and hereby
(i) acknowledges and agrees that any and all indebtedness, liabilities or
obligations arising under or in connection with the Notes are Obligations and
are secured indebtedness under, and are secured by, each and every Security
Document to which it is a party, (ii) re-pledges, re-grants and re-assigns a
security interest in and lien on all of its assets described as collateral in
any Security Document, (iii) ratifies and confirms its Amended and Restated
Guaranty dated April 11, 1996 made by it for the benefit of Agent and Lenders,
and (iv) expressly acknowledges and agrees that such Subsidiary Guarantor
guarantees all indebtedness, liabilities and obligations arising under or in
connection with the Notes pursuant to the terms of such Amended and Restated
Guaranty, and agrees that its obligations and covenants thereunder are
unimpaired hereby and shall remain in full force and effect.
PLAINS MARKETING & TRANSPORTATION INC.
PLAINS RESOURCES INTERNATIONAL INC.
PLAINS TERMINAL & TRANSFER CORPORATION
PLX CRUDE LINES INC.
XXXXXXX RESOURCES, INC.
PLX INGLESIDE INC.
CALUMET FLORIDA, INC.
PLAINS ILLINOIS INC.
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
XXXXXXX RESOURCES, L.P.
By: Xxxxxxx Resources, Inc.,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
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