AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT
NO. 1 TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of February
13, 2008, is among Plains Exploration & Production Company, a Delaware
corporation (the
“Borrower”),
the several banks and other financial institutions signatories hereto (the
“Majority
Lenders”) and JPMorgan Chase Bank, N.A., a national banking association,
as Administrative Agent for the Lenders (the “Administrative
Agent”).
RECITALS
A. The
Borrower, the Lenders and the Administrative Agent are parties to an Amended and
Restated Credit Agreement dated as of November 6, 2007 (the “Credit
Agreement”).
B. The
Borrower has requested that the Credit Agreement be amended as more fully set
forth herein, and the Majority Lenders are willing to do so subject to the terms
and conditions set forth herein and provided that the Borrower and the
Guarantors (as defined in the Credit Agreement) ratify and confirm all of its
obligations under the Credit Agreement and the other Credit
Documents.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants set forth
in this amendment, the Borrower and the Majority Lenders agree as
follows:
1. Defined
Terms. Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Credit
Agreement.
2. Amendments
to Credit Agreement. The Credit Agreement is hereby amended as
follows:
(a) Section
1.02 is hereby amended by adding the following new definitions in appropriate
alphabetical order:
“‘OXY Sale
Agreement’ means the Purchase and Sale Agreement dated as of December 14,
2007, by and among the Borrower, Plains Resources Inc., PXP Hell’s Gulch LLC,
PXP East Plateau LLC, PXP Brush Creek LLC, PXP Piceance LLC, Pogo Producing
Company LLC, Pogo Panhandle 2004 LP, Latigo Petroleum Texas, LP and OXY USA
Inc., as amended, modified or supplemented from time to time pursuant to an
instruments approved by the Administrative Agent.”
“‘Sale
Completion Date’ means the first date on which the Borrower and its
Restricted Subsidiaries have substantially completed the transactions
contemplated by the OXY Sale Agreement and the XTO Sale Agreement and have
received at least $1,400,000,000 in gross proceeds from such
transactions.”
“‘XTO Sale
Agreement’ means the Purchase and Sale Agreement dated as of December 14,
2007, by and among Pogo Producing Company LLC, Pogo Producing (San Xxxx)
Company, Pogo Partners, Inc. and XTO Energy Inc., as amended, modified or
supplemented from time to time pursuant to instruments approved by the
Administrative Agent.”
(b) The
definition of Specified Date in Section 1.02 is hereby amended to read as
follows:
“‘Specified
Date’ means the earlier of (i) the first anniversary of the closing held
pursuant to the Merger Agreement, (ii) the first date after the Effective Date
on which the Borrower issues any Permitted Additional Debt, (iii) the sale (in
one or more transactions) of Oil and Gas Properties not covered by the most
recent Reserve Report delivered to the Administrative Agent and the issuance of
Equity Interests (other than pursuant to the Merger Agreement) for an aggregate
consideration of $300,000,000 or more, and (iv) the consummation of the
transactions contemplated by both the OXY Sale Agreement and the XTO Sale
Agreement.”
(c) The
definition of Maximum Credit Amount in Section 1.02 is hereby amended by
deleting from clause (a) thereof the phrase “Section 2.06(b)” and replacing it
with the phrase “Section 2.06(b) or (c)”.
(d) Section
2.06 is hereby amended by adding at the end thereof the following new subsection
(c):
“(c) Mandatory
Reduction of Aggregate Maximum Credit Amounts. Upon the
completion of the transactions contemplated by the XTO Sale Agreement, the
Aggregate Maximum Credit Amounts will be automatically and permanently reduced
by $100,000,000. Upon the completion of the transactions contemplated
by the OXY Sale Agreement, the Aggregate Maximum Credit Amounts will be
automatically and permanently reduced by $900,000,000. Each such
reduction will be made ratably among the Lenders in accordance with each
Lender’s Applicable Percentage.”
(e) Section
3.04(c)(i) is hereby amended by deleting the phrase “Section 2.06(b)” and
replacing it with the phrase “Section 2.06(b) or (c)”.
(f) Section
9.04(d) is hereby amended to read as follows:
“(d)
to the extent not permitted by clauses (a) to (c) above, the Borrower may make
Restricted Payments to repurchase, redeem, or otherwise acquire any Equity
Interests of the Borrower if (i) no Default or Event of Default has occurred and
is continuing at the time such Restricted Payment is made or would result from
the making of such Restricted Payment, (ii) the cumulative amount of Restricted
Payments made after the Effective Date pursuant to this Section 9.04(d) does not
exceed (A) prior to the Sale Completion Date, $100,000,000 and (B) after the
Sale Completion Date, $1,000,000,000, and (iii) the Borrower’s Minimum Liquidity
after giving effect to such Restricted Payment is not less than $250,000,000,
and”.
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(g) Section
9.12(d) is hereby amended by adding at the end thereof the following
clause:
“provided,
further, however, that in connection with the sales of Oil and Gas Properties
contemplated by the OXY Sale Agreement and the XTO Sale Agreement, (A) upon the
consummation of the transaction with XTO Energy, Inc. contemplated by the XTO
Sale Agreement, (1) the Borrowing Base Base will be reduced by $100,000,000 and
the (2) the Aggregate Maximum Credit Amounts will be reduced as described in
Section 2.06(c), (B) upon the consummation of the transaction with OXY USA, Inc.
contemplated by the OXY Sale Agreement, (1) the Borrowing Base will be reduced
by $300,000,000 and the (2) the Aggregate Maximum Credit Amounts will be reduced
as described in Section 2.06(c) and (C) the condition in clause (ii) above
(which would otherwise require another reduction in the Borrowing Base and the
Conforming Borrowing Base) shall not apply.”
3. First
Scheduled Redetermination. The Lenders party hereto
acknowledge that Borrower has previously provided to the Administrative Agent
and the Lenders the Reserve Report required to be delivered with respect to the
Oil and Gas Properties as of December 31, 2007. The Lenders party
hereto further agree that the Borrowing Base as of May 1, 2008, shall be as
determined in accordance with Section 9.12 as in effect after giving effect to
this amendment. For the avoidance of doubt, following the
consummation of the transactions contemplated by the Oxy Sale Agreement and the
XTO Sale Agreement, and subject to further adjustments pursuant to Interim
Redeterminations and Sections 8.12(c), 9.02(a)(ix) and 9.12(d), the Borrowing
Base and the Conforming Borrowing Base will be $2,500,000,000, and effective as
of May 1, 2008, the Borrowing Base and the Conforming Borrowing Base will be
maintained at $2,500,000,000.
4. Conditions
to Effectiveness. This amendment will become effective on the
date on which the following conditions have been satisfied or
waived:
(a) The
representations and warranties of the Borrower in Section 5 hereof are true and
correct;
(b) The
Administrative Agent has received this amendment, executed and delivered by the
Borrower, the Administrative Agent and the Super-majority Lenders;
(c) Each
Guarantor has executed and delivered an acknowledgment and consent to this
amendment in form and substance satisfactory to the Administrative
Agent.
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5. Representations
and Warranties. The Borrower hereby represents and warrants to
the Administrative Agent and each of the Lenders as follows:
(a) This
amendment has been duly authorized by all necessary corporate action and
constitutes the binding obligation of the Borrower.
(b) Each
of the representations and warranties made by the Borrower and the Guarantors in
or pursuant to the Credit Agreement and the other Loan Documents is true and
correct in all material respects as of the date hereof, as if made (after giving
effect to this amendment) on and as of such date, except for any representations
and warranties made as of a specified date, which are true and correct in all
material respects as of such specified date.
(c) After
giving effect to this amendment, no Default or Event of Default has occurred and
is continuing as of the date hereof.
6. Continuing
Effect of the Credit Agreement. This amendment does not
constitute a waiver of any provision of the Credit Agreement and is not to be
construed as a consent to any action on the part of the Borrower that would
require a waiver or consent of the Lenders or an amendment or modification to
any term of the Loan Documents except as expressly stated herein. The
Borrower hereby confirms and ratifies the Credit Agreement and each of the other
Loan Documents as amended hereby and acknowledges and agrees that the same
continue in full force and effect as amended hereby.
7. Reference
to the Credit Agreement. Upon the effectiveness of this
amendment, each reference in the Credit Agreement to “this Agreement,”
“hereunder,” “herein” or words of like import refer to the Credit Agreement, as
amended and affected hereby.
8. Counterparts. This
amendment may be executed by all parties hereto in any number of separate
counterparts each of which may be delivered in original or facsimile form and
all of such counterparts taken together constitute one instrument.
9. References. The
words “hereby,” “herein,” “hereinabove,” “hereinafter,” “hereinbelow,” “hereof,”
“hereunder” and words of similar import when used in this amendment refer to
this amendment as a whole and not to any particular article, section or
provision of this amendment. References in this amendment to a
section number are to such sections of the Credit Agreement unless otherwise
specified.
10. Headings
Descriptive. The headings of the several sections of this
amendment are inserted for convenience only and do not in any way affect the
meaning or construction of any provision of this amendment.
11. Governing
Law. This amendment is governed by and will be construed in
accordance with the law of the State of New York.
12. Payment of
Expenses. The Borrower shall pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
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13. Final
Agreement of the Parties. THIS AMENDMENT, THE
CREDIT AGREEMENT 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 AMONG THE PARTIES.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, the parties are signing this amendment as of the date first
above written.
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PLAINS
EXPLORATION &
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PRODUCTION
COMPANY
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By:
/s/ Xxxxxxx X.
Xxxxxxx
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Executive Vice President and Chief
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Financial
Officer
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Signature
Page to Amendment Xx. 0
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XXXXXXXX XXXXX
XXXX, X.X., as
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Administrative
Agent and a Lender
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By:
/s/ Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title: Vice
President
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Signature
Page to Amendment No. 1
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BANK OF
MONTREAL, as a Lender and
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As
Syndication Agent
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By:
/s/ Xxxxx X.
Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Director
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Signature
Page to Amendment No. 1
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BANK OF
AMERICA, N.A, as a Lender
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and
as a Co-Documentation Agent
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By:
/s/ Xxxxxx X.
XxXxxx
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Name:
Xxxxxx X. XxXxxx
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Title:
Senior Vice President
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Signature
Page to Amendment Xx. 0
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XXX XXXX XX
XXXX XXXXXX, as a
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Lender
and as a Co-Documentation Agent
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By:
/s/ Xxxxx
Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Director
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Signature
Page to Amendment No. 1
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BNP PARIBAS,
as a Lender and as a Co-
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Documentation
Agent
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By:
/s/ Xxxxx X.
Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Managing Director
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By:
/s/ Xxxx
Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title: Vice
President
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Signature
Page to Amendment No. 1
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CITICORP NORTH
AMERICA, INC., as
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A
Lender and as a Co-Documentation Agent
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By:
/s/ Xxxxx X.
Xxxx
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Name:
Xxxxx X. Xxxx
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Title: Vice
President
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Signature
Page to Amendment No. 1
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XXXXXX
BROTHERS COMMERCIAL
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BANK,
as a Lender and as a Co-
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Documentation
Agent
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By:
/s/ Xxxxxx
Xxxxx
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Name:
Xxxxxx Xxxxx
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Title: Chief
Credit Officer
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Signature
Page to Amendment No. 1
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THE
ROYAL BANK OF SCOTLAND
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PLC, as
a Lender and as a Co-
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Documentation
Agent
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By:
/s/ Xxxx Xxxxxxx,
Xx.
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Name:
Xxxx Xxxxxxx, Xx.
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Title: Vice
President
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Signature
Page to Amendment Xx. 0
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XXXXXXX
XXXXXXXX (XXXXX) LLC,
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as
a Lender and as a Co-Documentation
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Agent
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By:
/s/ Xxxxx X.
Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Authorized Signatory
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Signature
Page to Amendment No. 1
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XXXXX
FARGO BANK, NATIONAL
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ASSOCIATION,
as a Lender and as a Co-
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Documentation
Agent
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By:
/s/ Xxxx X.
Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
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Title: Vice
President
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Signature
Page to Amendment Xx. 0
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XXXX
XX XXXXXXXX xxx, Xxx Xxxx
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Branch
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By:
/s/ Xxxxx X.
Xxx
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Name:
Xxxxx Xxx
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Title: Head
of Business Services
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Signature
Page to Amendment No. 1
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COMERICA
BANK
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By:
/s/ Xxxx
Xxxxxx
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Name:
Xxxx Xxxxxx
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Title:
Assistant Vice President
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Signature
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FORTIS
CAPITAL CORP.
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By:
/s/ Xxxxx
Xxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Director
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By:
/s/ Xxxx
Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Director
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Signature
Page to Amendment No. 1
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UBS
LOAN FINANCE LLC
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By:
/s/ Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Director, Banking Products Services,
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US
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By:
/s/ Xxxxx X.
Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Associate Director, Banking
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Products Services,
US
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Signature
Page to Amendment No. 1
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WACHOVIA
BANK, NATIONAL
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ASSOCIATION
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By:
/s/ Xxxxx
Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title: Vice
President
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Signature
Page to Amendment No. 1
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XXXXXX
XXXXXXX BANK
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By:
/s/ Xxxxxx
Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title: Authorized
Signatory
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Signature
Page to Amendment No. 1
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XXXXXXX
SACHS CREDIT
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PARTNERS
L.P.
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By:
/s/ Xxxxx
Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title: Authorized
Signatory
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Signature
Page to Amendment No. 1
