EXHIBIT 10(m)
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of the 22nd day of August, 1995, by and among PLAINS
RESOURCES INC., a Delaware corporation (the "Company"), INTERNATIONALE
NEDERLANDEN (U.S.) CAPITAL CORPORATION, as Agent ("Agent"), and the Lenders
under the Original Agreement (as defined herein).
W I T N E S S E T H:
WHEREAS, the Company, Agent and Lenders entered into that certain Second
Amended and Restated Credit Agreement dated as of February 11, 1994, as amended
by that certain First Amendment to Second Amended and Restated Credit Agreement
dated as of September 15, 1994, that certain Second Amendment to Second Amended
and Restated Credit Agreement dated as of January 25, 1995, and that certain
Third Amendment to Second Amended and Restated Credit Agreement dated as of June
12, 1995 (as amended, including any schedules thereto, the "Original Agreement")
for the purposes and consideration therein expressed, pursuant to which Lenders
became obligated to make 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 Fourth Amendment to Second Amended and Restated
Credit Agreement.
"Credit Agreement" means the Original Agreement as amended hereby.
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ARTICLE II. -- Amendments
(S) 2.1. Definitions. (a) The definition of "Banque Paribas Facility"
set forth in Section 1.01 of the Original Agreement is hereby deleted. A new
definition of "Bank of Boston/ING Capital Facility" is hereby added to Section
1.01 of the Original Agreement immediately after the definition of "Bank", to
read as follows:
"Bank of Boston/ING Capital Facility" shall mean, collectively, two
uncommitted secured demand transactional line of credit facilities, in an
aggregate amount not to exceed $80,000,000, dated August 15, 1995 among The
First National Bank of Boston, individually and as agent, Internationale
Nederlanden (U.S.) Capital Corporation, the other lenders named therein and
(i) Plains Marketing, and (ii) PMCT, together with the security documents
and other documents and agreements executed in connection with each such
facility.
(b) The definition of "PMCT" set forth in Section 1.01 of the Original
Agreement is hereby amended in its entirety to read as follows:
"PMCT" shall mean PMCT Inc., a Delaware corporation, a Wholly-Owned
subsidiary of the Company.
(S) 2.2. Limitation on Liens. Sections 9.08(j) and 9.08(k) of the
Original Agreement are hereby amended in their entirety to read as follows:
"(j) Liens upon any properties, including all deposit accounts of Plains
Marketing, PMCT or their Wholly-Owned Subsidiaries, securing the Bank of
Boston/ING Capital Facility;"
"(k) one or more letters of credit issued for the account of the Company
that do not in the aggregate at any time exceed a face amount of
$1,000,000, which are issued to secure a guaranty by the Company of the
Indebtedness of Plains Marketing and its Wholly-Owned Subsidiaries under
the Bank of Boston/ING Capital Facility, and Liens securing such guaranty
by the Company in favor of the agent or lenders under the Bank of
Boston/ING Capital Facility upon all securities or other property belonging
to the Company now or hereafter held by such agent or lenders and in all
deposits (general or special, time or demand, provisional or final) and
other sums credited by or due from such agent or lenders to the Company or
subject to withdrawal by the Company; provided, any such securities or
other property belonging to the Company acquired by such agent or lenders
pursuant to the exercise by such agent or lenders of any such Lien shall be
applied first, against the Obligations then due and owing, and then,
against the obligations of the Company under such guaranty;"
(S) 2.3. Limitation on Indebtedness. Section 9.09(e) of the Original
Agreement is hereby amended in its entirety to read as follows:
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"(e) Indebtedness of Plains Marketing, PMCT and their Wholly-Owned
Subsidiaries under the Bank of Boston/ING Capital Facility, the guaranty by
the Company of such Indebtedness (together with letter of credit
reimbursement obligations of the Company in connection with one or more
letters of credit issued for the account of the Company to secure such
guaranty that do not in the aggregate at any time exceed a face amount of
$1,000,000), other Indebtedness of Plains Marketing, PMCT and their Wholly-
Owned Subsidiaries arising in the ordinary course of their businesses under
crude oil purchase or sale agreements, crude oil future, forward or similar
contracts, or letters of credit supporting such obligations, in an
aggregate amount not in excess of (i) $90,000,000 minus (ii) the
outstanding Indebtedness under the Bank of Boston/ING Capital Facility, and
guaranties by the Company of such other Indebtedness;"
(S) 2.4. Limitation on Indebtedness. Section 9.09(h) of the Original
Agreement is hereby deleted in its entirety and replaced with the phrase
"intentionally omitted".
(S) 2.5. Plains Marketing Guaranty. Agent and Lenders hereby agree that
any monies, securities or other property of Plains Marketing acquired by Agent
or any Lender pursuant to the exercise by Agent or any Lender of their right of
offset granted by Plains Marketing pursuant to Section 8 of that certain Amended
and Restated Guaranty dated February 11, 1994 by Plains Marketing and other
guarantors in favor of Agent and Lenders, shall be applied first, against the
obligations of Plains Marketing then due and owing under the Bank of Boston/ING
Capital Facility, and then, against the obligations of Plains Marketing under
such Amended and Restated Guaranty.
(S) 2.6. Redemption of $1.30 Cumulative Convertible Preferred Stock.
Lenders hereby consent to the redemption of 48,070 shares of the Company's $1.30
Cumulative Convertible Preferred Stock at the aggregate redemption price of
$481,000, plus any accrued and unpaid dividends thereon otherwise permitted to
be paid by the Company under the Credit Agreement, and waive any Default or
Event of Default arising from such redemption.
(S) 2.7. Termination and Release of Plains Marketing Security Agreement.
Pursuant to that certain Security Agreement dated February 11, 1994 by Plains
Marketing in favor of INCC, individually and as Agent, Plains Marketing pledged
all of the shares of stock of Plains Liquids Transport Inc., Plains Terminal &
Transfer Corporation and PLX Crude Lines Inc. as collateral for the Obligations.
The Company hereby represents and warrants that (i) Plains Liquids Transport
Inc. has been merged into the Company and (ii) the Company is now record holder
of such shares of stock of Plains Terminal & Transfer Corporation and PLX Crude
Lines Inc. In reliance upon the foregoing representation and warranty, Agent
and Lenders do hereby TERMINATE, RELEASE, QUITCLAIM, SURRENDER and DISCHARGE
unto the Company, its successors and assigns, all right, title and interest of
Agent and Lenders in and to the Collateral (as defined in such Security
Agreement) and hereby declares that such Collateral is fully released and
discharged from all liens, security interests and other encumbrances in favor of
Agent or Lenders.
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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, (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.
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 8 of the
Original Agreement, are true and correct at and as of the time of the
effectiveness hereof.
(b) The Company and the Subsidiaries are duly authorized to execute and
deliver this Amendment 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 to authorize the performance of their respective obligations hereunder.
(c) The execution and delivery by the Company and the Subsidiaries of this
Amendment, the performance by the Company and the Subsidiaries of their
respective obligations hereunder 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 certificate or articles of
incorporation and bylaws of the Company or 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 to consummate the
transactions contemplated hereby.
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(d) When this Amendment has been duly executed and delivered, each of the
Basic Documents, as amended by this Amendment, will be a legal and binding
instrument and agreement of the Company and the Subsidiaries, 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, 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 shall not, except as expressly
provided herein, 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 shall survive the execution and
delivery of this Amendment and the performance hereof, 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 or under the Credit Agreement to Agent or any Lender shall
be deemed to constitute representations and warranties by, or agreements and
covenants of, the Company under this Amendment and under the Credit Agreement.
(S) 5.4. Basic Documents. This Amendment is a Basic Document, and all
provisions in the Credit Agreement pertaining to Basic Documents apply hereto.
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(S) 5.5. GOVERNING LAW. THIS AMENDMENT 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 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.
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS RESOURCES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Treasurer
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
CORPORATION, individually as a Lender and as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Associate
THE FIRST NATIONAL BANK OF BOSTON, Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
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DEN NORSKE BANK AS, Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Senior Vice President
and General Counsel
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
FIRST INTERSTATE BANK OF TEXAS, N.A., Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President
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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) acknowledge and agree that any and all indebtedness, liabilities or
obligations arising under or in connection with the Notes and the Renewal Notes
are Obligations and is secured indebtedness under, and is 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 and (iii) ratifies and confirms its Amended
and Restated Guaranty dated February 11, 1994 made by it for the benefit of
Agent and Lenders, expressly acknowledges and agrees that such Subsidiary
Guarantor guarantees all indebtedness, liabilities and obligations arising under
or in connection with the Notes and the Renewal 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.
CALUMET FLORIDA, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PLAINS LIQUIDS TRANSPORT INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PLAINS MARKETING & TRANSPORTATION INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PLAINS RESOURCES INTERNATIONAL INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
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PLAINS TERMINAL & TRANSFER CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PRI PRODUCING INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PLX CRUDE LINES INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇▇ RESOURCES, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇▇ RESOURCES, L.P.,
a California limited partnership
By: ▇▇▇▇▇▇▇ Resources, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
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