EXHIBIT 10.1
SEVENTH AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") dated as of the 11th day of October, 2000, by and among
PLAINS RESOURCES INC., a Delaware corporation (the "Company"), FIRST UNION
NATIONAL BANK (assignee of ING (U.S.) Capital LLC, successor in interest to ING
(U.S.) Capital Corporation), as Agent ("Agent"), and the Lenders named herein.
W I T N E S S E T H:
WHEREAS, the Company, Agent and Lenders entered into that certain Fourth
Amended and Restated Credit Agreement dated as of May 22, 1998, as amended by a
First Amendment to Fourth Amended and Restated Credit Agreement dated November
17, 1998, a Second Amendment to Fourth Amended and Restated Credit Agreement
dated March 15, 1999, a Third Amendment to Fourth Amended and Restated Credit
Agreement dated June 21, 1999, a Fourth Amendment to Fourth Amended and Restated
Credit Agreement dated September 15, 1999, a Fifth Amendment to Fourth Amended
and Restated Credit Agreement dated December 1, 1999, a Limited Waiver and
Consent dated as of January 28, 2000 and a Sixth Amendment to Fourth Amended and
Restated Credit Agreement dated as of June 12, 2000 (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 Seventh Amendment to Fourth Amended and
Restated Credit Agreement.
"Amendment Documents" means this Amendment.
1
"Credit Agreement" means the Original Agreement as amended hereby.
ARTICLE II. -- Amendments
(S) 2.1. Definitions - Indebtedness. Clause (e) of the definition of
"Indebtedness" in Section 1.01 of the Original Agreement is hereby amended in
its entirety to read as follows:
(e) indebtedness of others Guaranteed by such Person, excluding
indebtedness under forward, future, swap or hedging contracts permitted
under Section 8.33 that does not constitute "Indebtedness" as defined in
clause (h) below;
(S) 2.2. Limitation on Liens. Section 8.08 of the Original Agreement is
hereby amended by (i) redesignating clause (l) as clause (k), and (ii) adding a
new clause (j) thereto, to read as follows:
(j) Liens by the Company or a Subsidiary on money, assets, letters of
credit or other security pledged to secure Indebtedness and other
indebtedness and obligations under any forward, future, swap or hedging
contract permitted under Section 8.33(b), provided, that the aggregate
amount of such security subject to such Liens does not at any time exceed
the aggregate amount of $25,000,000; and
(S) 2.3. Dividend Payments. The reference to "$50,000,000" set forth in
the first clause of Section 8.11(c) of the Original Agreement is hereby amended
by referring instead to "$50,000,000, and during the period from October 11,
2000 through September 30, 2001, an additional $50,000,000,".
(S) 2.4. Dividend Payments - Series F and Series G. Section 8.11 of the
Original Agreement is hereby amended by (i) deleting the term "and" at the end
of clause (b) thereof, (ii) deleting the period at the end of clause (c) thereof
and substituting therefor ";", and (iii) adding clauses (d) and (e) at the end
thereof, to read as follows:
(d) declare and make regularly scheduled Dividend Payments for the
year 2001 in cash in respect of the Company's Series F Cumulative
Convertible Preferred Stock, stated value $1,000 per share, provided, the
aggregate amount of all such Dividend Payments during the year 2001 shall
not exceed $5,000,000; and
(b) declare and make regularly scheduled Dividend Payments for the
year 2001 in cash in respect of the Company's Series G Cumulative
Convertible Preferred Stock, stated value $500 per share, provided, the
aggregate amount of all such Dividend Payments during the year 2001 shall
not exceed $8,450,000.
(S) 2.5. New Borrowing Base. Pursuant to Section 2.08 of the Credit
Agreement, Agent hereby notifies the Company that Supermajority Lenders have
redetermined the Borrowing Base as $225,000,000, effective for the period
beginning on and including the date hereof and continuing until but not
including the next date as of which the Borrowing Base is redetermined.
2
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 Majority Lenders (and, as to Section 2.5, Supermajority Lenders),
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.
(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, except to the extent that such representation or
warranty was made as of a specific date or updated, modified or
supplemented as of a subsequent date with the consent of Majority Lenders,
subject to, in regard to the penultimate sentence of Section 7.02, the
Unauthorized Trading Losses, as referred to in the Company's annual report
on Form 10-K for the year ended December 31, 1999. No Default has occurred
and is continuing.
(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
3
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.
(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
4
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.
(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/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx, Executive Vice President
5
FIRST UNION NATIONAL BANK,
as Agent, LC Issuer and a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx, Senior Vice President
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.), Lender
By: /s/ Xxxxxxxx Xxxxx
---------------------
Xxxxxxxx Xxxxx, Director
BANK OF AMERICA, N.A., Lender
By:
---------------------
Name:
Title:
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By:
---------------------
Name:
Title:
THE CHASE MANHATTAN BANK
(successor to Chase Bank of Texas, N.A.), Lender
By:
---------------------
Name:
Title:
COMERICA BANK-TEXAS, Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx, Vice President
6
FORTIS CAPITAL CORP.
(f/k/a MeesPierson Capital Corp.), Lender
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
BANK OF SCOTLAND, Lender
By:
---------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, Lender
By:
---------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By:
---------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------
Name:
Title:
7
CONSENT AND AGREEMENT
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 May 22, 1998 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 RESOURCES INTERNATIONAL INC.
XXXXXXX RESOURCES, INC.
PLAINS ILLINOIS INC.
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx, Executive Vice President
XXXXXXX RESOURCES, L.P.
By: Xxxxxxx Resources, Inc.,
its General Partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx, Executive Vice President
8
The undersigned Subsidiary Guarantor 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 Guaranty dated July 1,
1999 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 Guaranty, and agrees that its
obligations and covenants thereunder are unimpaired hereby and shall remain in
full force and effect.
XXXXXXXX INC.
By: /s/ Xxxx Xxxxxx
------------------
Name: Xxxx Xxxxxx
Title: Executive Vice President
9
