SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Second
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Amendment") dated as of February 10, 1997 is made and entered into among XXXXXXX
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RESOURCES CORPORATION, a Delaware corporation ("Borrower"), the Banks (as
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hereinafter defined), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association ("TCB") acting in its capacity as agent for the Banks (in
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such capacity, the "Agent").
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WHEREAS, Borrower, the financial institutions party thereto (the "Banks")
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and the Agent have heretofore entered into a Revolving Credit Agreement dated as
of July 19, 1995 (the "Credit Agreement") providing for, among other things,
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revolving credit loans to be made by the Banks to Borrower in a principal amount
not to exceed $200,000,000.00 in the aggregate at any time outstanding on the
terms and subject to the conditions therein set forth; and
WHEREAS, the parties desire to amend the Credit Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
representations and warranties herein set forth, and for other good and valuable
consideration, the parties hereto agree as follows:
1. MODIFICATION OF SECTION 1.01.
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1.1 Section 1.01 of the Credit Agreement is hereby amended by adding the
following new definition of "Effective Date of Second Amendment" immediately
after the definition of "Effective Date":
" "Effective Date of Second Amendment" shall have the same meaning
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given to the term "Effective Date" in the Second Amendment."
1.2 Section 1.01 of the Credit Agreement is hereby further amended by
deleting the phrase "Subsidiary Guaranty" appearing in the first line of the
definition therein of "Loan Documents".
1.3. Section 1.01 of the Credit Agreement is hereby further amended by
adding the following new definition of "Public Indenture" immediately after the
definition of "Proved Undeveloped Hydrocarbon Reserves":
" "Public Indenture" means the Indenture, dated as of February ____,
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1997, entered into between Borrower and Bankers Trust Company, as Trustee."
1.4. Section 1.01 of the Credit Agreement is hereby further amended by
adding the following new definition of "Restricted Subsidiaries" immediately
after the definition of "Responsible Officer":
" "Restricted Subsidiaries" means Plains and Plains Operating."
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1.5. Section 1.01 of the Credit Agreement is hereby further amended by
adding the following new definition of "Second Amendment" immediately after the
definition of "S&P":
" "Second Amendment" means that certain Second Amendment to Revolving
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Credit Agreement dated as of February 10, 1997 among Borrower, the Agent
and each of the Banks."
1.6. Section 1.01 of the Credit Agreement is hereby further amended by
deleting the definition
therein of "Subsidiary Guaranty" in its entirety.
2. MODIFICATION OF SECTION 3.01. Subsection 3.01(a)(i)(bb) of the Credit
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Agreement is hereby amended by replacing the phrase "; and" contained therein
with a ".", and by deleting Subsection 3.01(a)(a)(cc) in its entirety.
3. MODIFICATION OF SECTION 4.16. Section 4.16 of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"SECTION 4.16. Subsidiaries. As of the Effective Date of the Second
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Amendment, Schedule 4.16 contains a complete and accurate (a) list of all
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Subsidiaries of Borrower, (b) description of the issued and outstanding
capital stock of each Subsidiary of Borrower and (c) the record owners of
such capital stock.
4. MODIFICATION OF SECTION 5.11. Section 5.11 of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"SECTION 5.11. Consolidation of Assets. On or before February 10,
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1998, Borrower shall, in an orderly fashion, merge or consolidate with, or
acquire substantially all of the assets of, each of the Subsidiaries listed
in Paragraph 1 of Schedule 4.16 unless, in the good faith judgment of
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Required Banks, such merger or consolidation is prevented by material legal
or accounting issues or will result in a material and adverse tax or
economic detriment to Borrower and its Subsidiaries, and Borrower shall not
thereafter reconvey, contribute or distribute such assets to any Subsidiary
without the prior written consent of Required Banks.
5. ADDITION OF NEW SECTION 5.13. The Credit Agreement is hereby amended
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by adding the following Section 5.13 immediately after Section 5.12:
"SECTION 5.13. Equal Security for Loans and Notes. If any of
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Borrower or any of its Subsidiaries shall create, incur, assume, or suffer
to exist any Lien (other than Liens excepted by the provisions of Section
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6.03) upon any of its assets or property, whether now owned or hereafter
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acquired, (unless prior written consent to the creation or assumption
thereof shall have been obtained from the Required Banks), Borrower or such
Subsidiary, as the case may be, shall make or cause to be made an effective
provision whereby the Loans and other Obligations under this Agreement will
be secured by such Lien equally and ratably with any and all other
Indebtedness thereby secured as long as any such other Indebtedness shall
be so secured; provided that this covenant shall not be construed as
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consent by the Banks to any violation by Borrower or its Subsidiaries of
Section 6.03 and, provided, further, that Borrower and its Subsidiaries
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shall not agree with any other holder of its Indebtedness (except as
provided in the Public Indenture) that it shall provide equal security for
such Indebtedness."
6. MODIFICATION OF SECTION 6.01.
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6.1 Section 6.01 (b) of the Credit Agreement is hereby amended to read in
its entirety as set forth below:
"(b) Unsecured Indebtedness and Accommodation Obligations outstanding
on the Effective Date of the Second Amendment hereof described in Schedule
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6.01, in each case in a
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principal amount at any one time outstanding not to exceed the amount set
forth on Schedule 6.01 hereof;"
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6.2 Section 6.01 (g) of the Credit Agreement is hereby amended by adding
the parenthetical "(other than Restricted Subsidiaries)" after the word
"Subsidiaries" appearing in the second line thereof.
6.3 Section 6.01 (h) of the Credit Agreement is hereby amended by adding
the parenthetical "(other than Restricted Subsidiaries)" after the word
"Subsidiaries" appearing in the second line thereof.
6.4 Section 6.01 is hereby further amended by adding the following
sentence immediately after Subsection 6.01(h):
"It is understood and agreed that Borrower shall not permit any of its
Restricted Subsidiaries to create, incur, assume or otherwise become or
remain liable with respect to, any Indebtedness or Accommodation
Obligations, except for that incurred under subparagraphs (c), (d), (e),
and (f) above."
7. MODIFICATION OF SECTION 6.02. Section 6.02 of the Credit Agreement is
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hereby amended by deleting the phrase "provided such Subsidiary has duly
executed and delivered a Subsidiary Guaranty in favor of the Agent" from the
eighth and ninth lines thereof.
8. MODIFICATION OF SECTION 6.03. Section 6.03 of the Credit Agreement is
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hereby amended by replacing the parenthetical "(other than this Credit
Agreement)" appearing in the fifth line thereof with the parenthetical "(other
than this Credit Agreement and the Public Indenture)".
9. MODIFICATION OF SECTION 6.05. Subsection 6.05(d) of the Credit
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Agreement is hereby amended by deleting the phrase "provided such Subsidiaries
have executed and delivered a Subsidiary Guaranty in favor of the Agent"
therefrom.
10. MODIFICATION OF SECTION 6.07. Section 6.07 of the Credit Agreement is
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hereby amended by adding the word "and" immediately before the parenthetical
"(ii)" appearing in the fourth line thereof and by deleting the subclause "or
(iii) a Subsidiary's ability to perform timely its material covenants and
obligations under any Subsidiary Guaranty to which it is a party" therefrom.
11. MODIFICATION OF SECTION 6.08. Section 6.08 of the Credit Agreement is
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hereby amended by replacing the word "or" appearing in the sixth line thereof
with a "," and by adding the clause "or (iv) transfers and conveyances of assets
from the Subsidiaries of Borrower to the Borrower as provided for in
Section 5.11 and permitted under Section 6.04."
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12. ADDITION OF NEW SECTION 6.16. The Credit Agreement is hereby amended
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by adding the following Section 6.16 immediately after Section 6.15:
"SECTION 6.16. Subsidiaries. Borrower shall not acquire, create or
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otherwise allow or permit any corporation, partnership or other Person to
become a Subsidiary (other than those Subsidiaries set forth on Schedule
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4.16 and permitted to exist pursuant to Section 5.13 hereof) without, in
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each instance, the prior written consent of Required Banks."
13. MODIFICATION OF SECTION 7.01.
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13.1 Section 7.01(c) is hereby amended by adding the sections "5.11,
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5.13 " immediately after the section "5.01(d)(ii)" contained therein.
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13.2 Section 7.01(d) is hereby amended by deleting the section "5.11"
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therefrom.
13.3 Section 7.01(f) is hereby amended to read in its entirety as follows:
"(f) [Intentionally deleted]"
13.4 Section 7.01(i) is hereby amended by replacing the phrase
"$15,000,000" contained in the second line thereof with the phrase "$5,000,000".
13.5 Section 7.01(m) is hereby amended by replacing the phrase
"$15,000,000" contained in the first line thereof with the phrase "$10,000,000".
14. MODIFICATION OF SECTION 9.01. Section 9.01 of the Credit Agreement is
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hereby amended by adding the word "or" after the semicolon in subclause (vi)
thereof, and by replacing the phrase "; or" at the end of subclause (vii)
thereof with a ".", and by deleting in its entirety subclause (viii) therefrom.
15. MODIFICATION OF SECTION 9.10(b). Section 9.10(b) of the Credit
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Agreement is hereby amended by deleting the phrase "or the release of any
Subsidiary under the Subsidiary Guaranty" from the sixteenth and seventeenth
lines thereof.
16. MODIFICATION OF SCHEDULE 4.16. Schedule 4.16 of the Credit Agreement
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is hereby amended to read in its entirety as set forth in Annex A attached
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hereto and made a part hereof by reference for all purposes.
17. MODIFICATION OF SCHEDULE 4.19. Schedule 4.19 of the Credit Agreement
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is hereby amended to read in its entirety as set forth in Annex B attached
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hereto and made a part hereof by reference for all purposes.
18. MODIFICATION OF SCHEDULE 6.01. Schedule 6.01 of the Credit Agreement
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is hereby amended to read in its entirety as set forth in Annex C attached
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hereto and made a part hereof by reference for all purposes.
19. DELETION OF EXHIBIT 5.11. Exhibit 5.11 of the Credit Agreement is
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hereby deleted in its entirety.
20. BORROWING BASE. During the period from the Effective Date of the
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Second Amendment until May 1, 1997 (the next Redetermination Date), the
Borrowing Base shall be $75,000,000.
21. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
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warrants that (a) the Borrower has the corporate power, authority and legal
right to execute and deliver this Second Amendment and to perform the Credit
Agreement as amended through this Second Amendment, and has taken all necessary
corporate action to authorize the execution and delivery of this Second
Amendment and the performance of the Credit Agreement as amended through this
Second Amendment, (b) this Second Amendment has been duly executed and delivered
on behalf of Borrower, (c) the Credit Agreement as amended through this Second
Amendment constitutes a valid and legally binding agreement enforceable
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against Borrower in accordance with its terms, except as enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws relating to creditors' rights generally and by
general principles of equity which may limit the right to obtain equitable
remedies (regardless of whether such enforceability is considered in a
proceeding in equity or at law), (d) the representations and warranties
contained in Article IV of the Credit Agreement as amended through this Second
Amendment are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof (or, if stated to have been
made solely as of an earlier date, were true and correct as of such earlier
date) and (e) no Event of Default (as such term is defined in the Credit
Agreement) has occurred and is continuing.
22. EFFECTIVENESS. This Second Amendment shall become effective on the
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date when each of the following conditions shall have been fulfilled:
22.1. Borrower and each Bank shall have duly executed a counterpart of
this Second Amendment and delivered same to the Agent, or, in the case of any
Bank as to which an executed counterpart hereof shall not have been so
delivered, the Agent shall have received written confirmation by telecopy or
other similar writing from such Bank of execution of a counterpart hereof by
such Bank.
22.2. The Agent shall have received the favorable written legal opinion
of Bearman Xxxxxxxxx & Xxxxxxx Professional Corporation, legal counsel to the
Borrower, dated as of the date hereof, and in form and substance satisfactory to
the Agent;
22.3 The Indenture dated as of February ____, 1997, entered into between
Borrower and Bankers Trust Company, as Trustee, shall have been duly executed
and delivered contemporaneously with the execution and delivery of this Second
Amendment and Borrower shall have issued its ___ % Senior Notes due 2007.
22.4. The Agent shall have received a certificate, in form and
substance satisfactory to the Agent and dated as of the date hereof, from the
Secretary or Assistant Secretary of Borrower as to (i) the election, incumbency
and signatures of the officer(s) of the Borrower executing this Second
Amendment, (ii) the resolutions (attaching a true and correct copy of same) of
the Executive Committee of Borrower authorizing the execution, delivery and
performance of the Credit Agreement as amended through this Second Amendment,
(iii) no amendments, modifications, changes or alterations to, or revocation,
repeal or supersession of, (x) its Certificate of Incorporation since July 19,
1995, and (y) its Bylaws since July 19, 1995; and (iv) the execution, delivery
and effectiveness of the Indenture, dated as of February ____, 1997, entered
into between Xxxxxxx and Bankers Trust Company, as Trustee.
22.5. Borrower shall have executed and delivered, or caused to be
executed and delivered, to the Agent such other documents and instruments and
taken such other actions as the Banks may reasonably request in connection with
this Second Amendment or the matters referred to herein.
23. EXPENSES. Whether or not this Second Amendment shall become
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effective as provided in paragraph 22 above and whether or not the transactions
contemplated hereby shall be consummated, Borrower agrees to pay on demand any
and all expenses incurred by the Agent (including, without limitation,
reasonable fees and disbursements of counsel for the Agent) in connection with
or relating to the execution and delivery of this Second Amendment.
24. MISCELLANEOUS PROVISIONS.
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24.1. Except as amended and modified through this Second Amendment, the
Credit Agreement shall continue in full force and effect. The Credit Agreement
and this Second Amendment shall be read, taken and construed as one and the same
instrument.
24.2. This Second Amendment may be signed in any number of
counterparts, and by different parties on separate counterparts, each of which
shall be construed as an original, but all of which together shall constitute
one and the same instrument.
24.3. Capitalized terms used herein without definition shall have the
meaning assigned to them in the Credit Agreement. The term "Credit Agreement"
as defined and used in the other Loan Documents or any other instrument,
document or writing furnished to the Bank by Borrower in connection with the
Credit Agreement shall mean the Credit Agreement as amended through this Second
Amendment.
24.4. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED STATES OF
AMERICA TO THE EXTENT APPLICABLE.
24.5. THE CREDIT AGREEMENT AS AMENDED THROUGH THIS SECOND AMENDMENT AND
THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION
26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to be
executed and delivered as of the date first above written.
BORROWER
XXXXXXX RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President and Treasurer
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AGENT
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
In its capacity as Agent for the Banks
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxxx
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Title: V.P.
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BANKS
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: V.P.
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NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: S.V.P.
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BANK OF MONTREAL, HOUSTON AGENCY
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Director, U.S. Corporate Banking
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
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Title: Division Executive
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COLORADO NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Authorized Agent
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GW09:72814.06/110864-19/1187
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ANNEX A TO
SECOND AMENDMENT
SCHEDULE 4.16
Subsidiaries
1. Names of the existing Subsidiaries of Borrower that are to be merged
into or consolidated with Borrower in compliance with the provisions of
Section 5.11 of the Credit Agreement:
Jurisdiction or Percentage Ownership
Name Organization Ownership Type
Plains Petroleum Company Delaware 100% Direct
Plains Petroleum Operating Company Delaware 100% Indirect
Xxxxxxx Resources (PAC I)
Corporation(f/k/a 4-D Energy, Inc.) Kansas 100% Direct
Xxxxxxx Resources (PAC II) Corporation
(f/k/a Quasar Energy, Inc.) Kansas 100% Direct
Alarado Corporation*** Delaware 100% Direct
Xxxxxxx Fuels Corporation Delaware 100% Direct
BGP Inc. Delaware 100% Direct
2. Names of the existing Subsidiaries that will remain wholly-owned
Subsidiaries after February 10, 1998:
Jurisdiction or Percentage Ownership
Name Organization Ownership Type
Plains Petroleum Gathering Company* Delaware 100% Indirect
Bargath, Inc.* Colorado 100% Direct
Alarado (Denver) Company* Colorado 100% Indirect
Xxxxxxx Resources International
Corporation** Delaware 100% Direct
Xxxxxxx Resources (Peru)
Corporation* Delaware 100% Indirect
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Xxxxxxx Resources (Peru)
Corporation Sucursal del Peru Peru Branch
* Plains Petroleum Gathering Company and Bargath Inc. own gas gathering and
pipeline assets; Alarado (Denver) Company will be merged into Bargath, Inc.;
Bargath, Inc. is a venture partner in the Grand Valley Gathering System JV and
Trailridge Gathering System JV
** Xxxxxxx Resources International Corporation and Xxxxxxx Resources (Peru)
Corporation exist for tax purposes to conduct foreign operations
***Alarado Corporation's name will be changed to Xxxxxxx Resources (PAC III)
Corporation prior to its merger into or consolidation with Borrower
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ANNEX B TO
SECOND AMENDMENT
SCHEDULE 4.19
Material Contracts
1. Indenture dated as of February ____, 1997 between Borrower and Bankers
Trust Company, as Trustee concerning the issuance of ___% Senior Notes
due 2007 in the aggregate principal sum of $150,000,000.
2. No other Material Contracts exist as defined in the Revolving Credit
Agreement other than of the type specifically excluded in Section 4.19
of the Revolving Credit Agreement.
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ANNEX C TO
SECOND AMENDMENT
SCHEDULE 6.01
EXISTING INDEBTEDNESS
1. As of March 31, 1995 Plains had a liability of $952,000 for its post
retirement benefit plans and a liability of $1,023,000 principally for its
deferred compensation plans.
2. Indebtedness evidenced by the Senior Notes issued by Borrower pursuant
to the Public Indenture; provided, that the aggregate outstanding principal
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amount of the Indebtedness thereunder shall not exceed $150,000,000. As use
herein, the term "Senior Notes" means the ___ % Senior Notes due 2007 issued by
Xxxxxxx Resources Corporation, a Delaware corporation, pursuant to the Public
Indenture.
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