EXHIBIT 28.1
FIFTH AMENDMENT TO FIFTH RESTATED
AND AMENDED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO FIFTH RESTATED AND AMENDED CREDIT
AGREEMENT (herein called the "Amendment") is made as of the 14th
day of August, 1997, 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 Fifth Restated and Amended Credit
Agreement dated as of August 13, 1996, as amended by that certain
First Amendment to Fifth Restated and Amended Credit Agreement
dated as of August 17, 1996, that certain Second Amendment to Fifth
Restated and Amended Credit Agreement dated as of February 25,
1997, that certain Third Amendment to Fifth Restated and
Amended Credit Agreement dated as of March 31, 1997, that certain
Fourth Amendment to Fifth Restated and Amended Credit Agreement
dated as of May 15, 1997 (as so amended, the "Original Agreement")
for the purpose and consideration therein expressed, whereby
Lenders became obligated to make loans to Borrower as therein
provided;
WHEREAS, Borrower has requested Agent and Lenders to extend
the Maturity Date, and Agent and Lenders have agreed to do so,
subject to the terms and conditions contained herein;
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 Fifth 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 definitions of "Excess Cash"
and "Maturity Date" in Section 1.1 of the Original Agreement are
hereby amended in their entirety to read as follows:
"Excess Cash" shall mean for any Calendar Quarter the
Adjusted Income of Borrower. For purposes of this definition, the
term "Adjusted Income of Borrower" for any Calendar Quarter means
EBITDAR for such Calendar Quarter, minus Fixed Charges for such
period, minus Capital Expenditures permitted by Section 7.06 hereof
actually made during such period.
"Maturity Date" shall mean the earlier to occur of July 1,
1998, or the date of any Acceleration.
Section 2.2 Partnership Insurance. A new Section 6.22 is
hereby added to the Original Agreement to read as follows:
"6.22. Partnership Liability Insurance. Each
Related Person shall maintain Partnership Liability Insurance
issued by Companies, and in amount, form and content acceptable to
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
(i) Agent shall have received, at Agent's office, a counterpart of
this Amendment executed and delivered by Borrower and each Lender,
(ii) Borrower shall have paid to Agent for the benefit of
Lenders, in consideration of Lenders agreeing to the transactions
contemplated herein, an amendment fee in the amount of $90,000,
(iii) Borrower shall have paid to Agent, in cash, all fees and
expenses, including legal and other professional fees and expenses
incurred, by the Agent prior to the date of this Amendment to the
extent that same have been billed on or prior to the date of this
Amendment, and (iv) Borrower shall have delivered to Agent the
following: (x) copies of all Partnership liability policies for
Borrower, and (y) a certificate from the Borrower certifying to the
enclosure of true and correct copies of the Petroleum Products
Supply Agreement between Texaco Trading and Transportation, Inc.
and Borrower dated June 11, 1997, together with all schedules and
exhibits thereto, and all other documents executed in connection
therewith prior to, on and after the date of its execution, which
certificate shall be true and correct.
Section 3.2. Conditions Subsequent. This Amendment shall no
longer be effective and it shall be an Event of Default under the
Credit Agreement if the Borrower or another Related Person shall
not have delivered all of the items on Schedule 1 attached hereto
on or before the dates specified.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower. In
order to induce each Lender to enter into this Amendment, each
Related Person 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 ia 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 and
thereunder.
(c) The execution and delivery by each Related Person of
this Amendment, the performance by each Related Person of its
obligations hereunder and thereunder and the consummation 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 or thereby.
(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 and all other Loan Documents are hereby
ratified and confirmed in all respects. Any reference to the
Credit Agreement in any Loan Document shall he 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 or any
other Loan Document nor constitute a waiver of any provision of the
Credit Agreement, the Notes or any other Loan Document nor
constitute a waiver of any Default or Event of Default.
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 with 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. Collateral Documents. Each Related Person
hereby agrees to deliver to Agent within ten days from the date
hereof, such supplements, amendments and/or modifications of and to
the existing Collateral Documents as the Agent shall request, in
form and substance acceptable to the Agent, to reflect of record
the extension of the Maturity Date.
Section 5.6. 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 XX XXXXX, X,X,
By: Xxx X. Xxxxxxx
Senior Vice President
LENDERS:
NATIONSBANK OF TEXAS, N.A.
By: Xxx X. Xxxxxxx
Senior 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
President
DESULFUR PARTNERSHIP
By: Pride Marketing of Texas
(Cedar Wind), Inc.,
its general partner
By: Xxxx Xxxxxxxx
President
CONSENT AND AGREEMENT
Pride Marketing hereby consents to the provisions of this
Amendment 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
SCHEDULE 1
LIST OF REQUESTED DOCUMENTS
1. All pleadings filed, orders entered and documentary or
deposition evidence submitted in the DFSC litigation, together with
a copy of all court transcripts from any hearings or trial in such
litigation. Date - September 5, 1997.
AGREEMENT
This Agreement is entered into by the undersigned as of
August 14, 1997. Reference is hereby made to that certain Note
Agreement dated as of August 13, 1996 (as from time to time
amended, modified or supplemented, the "Note Agreement") among
Pride Companies, L.P., a Delaware limited partnership (the
"Company"), Pride Refining, Inc., a Texas corporation ("Managing
General Partner"), Pride SGP, Inc., a Texas corporation ("Special
General Partner") and Bank One, Texas, N.A. and NationsBank of
Texas, N.A., as Purchasers ("Purchasers"). Capitalized terms used
and not otherwise defined herein have the meanings given them in
the Note Agreement.
The Company has requested Purchasers to extend the maturity
date of the Series A Notes, the Series B Notes and the Series C
Notes, and Purchasers have agreed to do so, subject to the terms
and conditions contained herein.
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Amendments to Note Agreement. Each reference in
Paragraphs 1A, 1B and 1C of the Note Agreement to a maturity date
of "April 1, 1998" for the Series A Notes, the Series B Notes and
the Series C Notes is hereby amended to read "July 1, 1998."
2. Conditions to Effectiveness of Agreement. This Agreement
shall become effective as of the date first above written when and
only when Purchasers shall have received a counterpart of this
Agreement executed and delivered by all parties hereto, and all
conditions to the Fifth Amendment to Fifth Restated and Amended
Credit Agreement dated this date by and among the Company, the
Managing General Partner, the Special General Partners, and others
have been met. This Agreement shall no longer be effective and it
shall be an Event of Default under the Note Agreement if the
Company shall not have complied with all Conditions Subsequent to
such Fifth Amendment to Fifth Restated and Amended Credit Agreement
dated this date.
3. Ratification of Documents; Securities Documents. The
Note Agreement as amended hereby is ratified and confirmed in all
respects. The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided herein operate as
a waiver of any right, power or remedy of any Purchaser under the
Note Agreement nor constitute a waiver of any provision of the Note
Agreement. This Agreement is a Securities Document, and all
provisions in the Note Agreement pertaining to Securities Documents
apply hereto.
4. Counterparts. This Agreement 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 Agreement.
THIS AGREEMENT AND THE OTHER SECURITIES 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, the undersigned have executed this
Agreement as of August 14, 1997.
PRIDE COMPANIES, L.P.
By: Pride Refining, Inc., Managing
General Partner
By: Xxxx Xxxxxxxx
Chief Executive Officer
PRIDE REFINING, INC,
By: Xxxx Xxxxxxxx
Chief Executive officer
PRIDE SGP, INC.
By: Xxxx Xxxxxxxx
Chief Executive Officer
NATIONSBANK OF TEXAS, N.A.
By: Xxx X. Xxxxxxx
Senior 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, Agent (as such terms are defined in the
Credit Agreement), and Purchasers 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
President
DESULFUR PARTNERSHIP
By: Pride Marketing of Texas
(Cedar Wind), Inc.,
its general partner
By: Xxxx Xxxxxxxx
President
CONSENT AND AGREEMENT
Each of the undersigned 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,
Agent, and Purchasers 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: Xxxx Xxxxxxx
Vice President
