EXHIBIT 28.1
FIRST AMENDMENT TO FIFTH RESTATED AND AMENDED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIFTH RESTATED AND AMENDED CREDIT
AGREEMENT (herein called the "Amendment") made as of the 27th day
of August, 1996, by and among Pride Companies, L.P., a Delaware
limited partnership ("Borrower"), Pride Refining, Inc., a Texas
corporation ("Pride Refining"), Pride SGP, Inc., a Texas
corporation ("Pride SGP"), Desulfur Partnership, a Texas general
partnership ("Desulfur Partnership"), Pride Marketing of Texas
(Cedar Wind), Inc., a Texas corporation ("Pride Marketing"),
Pride Xxxxxx, Inc., a Delaware corporation ("Pride Borger"),
NationsBank of Texas, N.A., a national banking association, as
Agent ("Agent"), and Lenders named on Schedule 1 to the Original
Agreement ("Lenders"),
W I T N E S S E T H:
WHEREAS, Borrower, Pride Refining, Pride SGP, Desulfur
Partnership, Pride Marketing, Pride Borger, Agent and Lenders
have entered into that certain Credit Agreement dated as of
August 13, 1996 (the "Original Agreement") for the purpose and
consideration therein expressed, whereby Lenders became obligated
to make loans to Borrower as therein provided; and
WHEREAS, Borrower, Agent and Lenders desire to amend the
original Agreement to provide for an uncommitted letter of credit
facility;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the
Original Agreement and in consideration of the loans which may
hereafter be made by Lenders to Borrower, 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
Section 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.
Section 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
Section 1.2.
"Amendment" shall mean this First Amendment to Fifth
Restated and Amended Credit Agreement.
"Credit Agreement" shall mean the Original Agreement as
amended hereby.
ARTICLE II
Amendments to Original Agreement
Section 2.1. Defined Terms. The definition of "Letter of
Credit" in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
"'Letter of Credit' shall mean any Facility A Letter of
Credit, Facility B Letter of Credit or Special Letter of
Credit issued, renewed or extended by Agent pursuant to this
Agreement or the Loan Documents, together with any letter(s)
of credit issued, renewed or extended by Agent pursuant to
the Original Credit Agreement."
The following definition of "Special Letter of Credit" is
hereby added to Section 1.1 of the Original Agreement immediately
following the definition of "Series C Units":
"'Special Letter of Credit' has the meaning specified
in Section 3.01(d)."
Section 2.2. Special Letters of Credit. Section 3.01 of the
Original Agreement is hereby amended by adding the following
clause (d) immediately following clause (c) thereof:
"(d) Special Letters of Credit. Determining Lenders
may elect, in their sole discretion, to direct Agent to
issue, renew or extend, for the account of Borrower, one or
more irrevocable standby Letters of Credit ('Special Letters
of Credit') from time to time upon a request by Borrower.
Borrower must give Agent either a properly completed Letter
of Credit Request or a CATS Request at least one Business
Day prior to the date Borrower desires a Special Letter of
Credit to be issued, renewed or extended. Notwithstanding
any course of dealing between Borrower, Agent or any Lender
or any prior Special Letter of Credit being issued, renewed
or extended by Agent and notwithstanding anything contained
in this Agreement or any other Loan Document to the
contrary, neither Agent nor any Lender has any obligation or
commitment whatsoever to issue, renew or extend any Special
Letter of Credit, and the decision for Agent to issue, renew
or extend any Special Letter of Credit shall be made solely
in the discretion of Determining Lenders. Special Letters
of Credit may be issued only to support obligations of
Borrower for purchases of crude oil and other refinery feed
stocks into the refinery known as the Pride Refinery,
located in Xxxxx County, Texas."
Section 2.3. Conditions. The heading to Section 3.02 of the
Original Agreement is hereby amended in its entirety to read as
follows: "Conditions to Letters of Credit".
Section 2.4. Terms of Letters of Credit. Section 3.03(b) of
the Original Agreement is hereby amended by adding the following
sentence to the end thereof:
"The expiry date of any Special Letter of Credit shall be
determined by Determining Lenders in their sole discretion,
provided that in no event shall such expiry date be later
than the Maturity Date (as then known)."
Section 3.03(e) of the Original Agreement is hereby amended
in its entirety to read as follows:
"(e) Agent may amend, renew and extend any Letter of
Credit (other than a Special Letter of Credit), upon receipt
of the necessary instructions from Borrower as Agent may
require. Any Special Letter of Credit may be amended,
renewed or extended by Agent only upon receipt of the
necessary instructions from Borrower as Agent may require
and the written consent of the Determining Lenders."
ARTICLE III
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become
effective as of the date first above written when, and only when,
Agent shall have received, at Agent's office, a counterpart of
this Amendment executed and delivered by Borrower and each
Lender.
ARTICLE IV
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower.
In order to induce each Lender to enter into this Amendment,
Borrower represents and warrants to each Lender that:
(a) The representations and warranties contained in
Article V of the Original Agreement are true and correct at
and as of the time of the effectiveness hereof.
(b) Each Related Person is duly authorized to execute
and deliver this Amendment, and Borrower is and will
continue to be duly authorized to borrow monies and to
perform its obligations under the Credit Agreement. Each
Related Person has duly taken all corporate and partnership
action necessary to authorize the execution and delivery of
this Amendment and to authorize the performance of the
obligations of such Related Person hereunder.
(c) The execution and delivery by each Related Person
of this Amendment, the performance by each Related Person of
its obligations hereunder and the consultation of the
transactions contemplated hereby do not and will not
conflict with any provision of law, statute, rule or
regulation or of the partnership agreement, articles of
incorporation and bylaws of any Related Person, or of any
material agreement, judgment, license, order or permit
applicable to or binding upon any Related Person, or result
in the creation of any lien, charge or encumbrance upon any
assets or properties of any Related Person. Except for
those which have been 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 each Related Person of this
Amendment or to consummate the transactions contemplated
hereby.
(d) When duly executed and delivered, this Amendment
will be a legal and binding obligation of each Related
Person, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights
and by equitable principles of general application.
ARTICLE V
Miscellaneous
Section 5.1. Ratification of Agreements. The Original
Agreement as hereby amended is hereby ratified and confirmed in
all respects. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original
Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of Lenders under the Credit Agreement, the Notes, or any
other Loan Document nor constitute a waiver of any provision of
the Credit Agreement, the Notes or any other Loan Document.
Section 5.2. Survival of Agreements. All representations,
warranties, covenants and agreements of the Related Person herein
shall survive the execution and delivery of this Amendment and
the performance hereof, including without limitation the making
or granting of the Loans, 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 any
Related Person hereunder or under the Credit Agreement to any
Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Borrower under
this Amendment and under the Credit Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan
Document, and all provisions in the Credit Agreement pertaining
to Loan Documents apply hereto.
Section 5.4. Governing Law. This Amendment shall be
governed by and construed in accordance the laws of the State of
Texas and any applicable laws of the United States of America in
all respects, including construction, validity and performance.
Section 5.5. Counterparts. This Amendment 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.
THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS 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 UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the
date first above written.
BORROWER:
PRIDE COMPANIES, L.P., a
Delaware limited
partnership
By: PRIDE REFINING, INC., a Texas
corporation, Managing General
Partner
By:
Xxxx Xxxxxxxx
Chief Executive Officer
GUARANTORS:
PRIDE REFINING, INC.
By:
Xxxx Xxxxxxxx
Chief Executive Officer
PRIDE SGP, INC.
By:
Xxxx Xxxxxxxx
Chief Executive Officer
PRIDE MARKETING OF TEXAS (CEDAR
WIND), INC.
By:
Xxxx Xxxxxxxx
President
DESULFUR PARTNERSHIP
By: Pride Marketing of Texas
(Cedar Wind), Inc., its
General Partner
By:
Xxxx Xxxxxxxx
President
PRIDE BORGER, INC.
By:
Xxxxx Xxxxxx
President
AGENT:
NATIONSBANK OF TEXAS, N.A.
By:
Xxx X. Xxxxxxx
Vice President
LENDERS:
NATIONSBANK OF TEXAS, N.A.
By:
Xxx X. Xxxxxxx
Vice President
BANK ONE, TEXAS, N.A.
By:
Xxxxxxx Xxxxxx
Vice President
CONSENT AND AGREEMENT
Each of Pride Refining, Pride SGP and Desulfur Partner
hereby consents to the provisions of this Agreement and the
transactions contemplated herein, and hereby ratifies and
confirms the Second Restated Guaranty Agreement dated as of
August 13, 1996, made by it for the benefit of Lenders and Agent,
and agrees that its obligations and covenants thereunder are
unimpaired hereby and shall remain in full force and effect.
PRIDE REFINING, INC.
By:
Xxxx Xxxxxxxx
Chief Executive Officer
PRIDE SGP, INC.
By:
Xxxx Xxxxxxxx
Chief Executive Officer
DESULFUR PARTNERSHIP
By: Pride Marketing of Texas
(Cedar Wind), Inc., its
general partner
By:
Xxxx Xxxxxxxx
President
CONSENT AND AGREEMENT
Pride Marketing and Pride Borger hereby consents to the
provisions of this Agreement and the transactions contemplated
herein, and hereby ratifies and confirms the Restated Guaranty
Agreement dated as of August 13, 1996, made by it for the benefit
of Lenders and Agent, and agrees that its obligations and covenants
thereunder are unimpaired hereby and shall remain in full force and
effect.
PRIDE MARKETING OF TEXAS (CEDAR
WIND), INC.
By:
Xxxx Xxxxxxxx
President
PRIDE BORGER, INC.
By:
Xxxxx Xxxxxx
President
