EXHIBIT 10.14
EIGHTH AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of the 30th day of May, 2001, by and among PLAINS
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RESOURCES INC., a Delaware corporation (the "Company"), FIRST UNION NATIONAL
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BANK (assignee of ING (U.S.) Capital LLC, successor in interest to ING (U.S.)
Capital Corporation), as Agent ("Agent"), and the Lenders named herein.
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W I T N E S S E T H:
WHEREAS, the Company, Agent and Lenders entered into that certain Fourth
Amended and Restated Credit Agreement dated as of May 22, 1998, as amended by a
First Amendment to Fourth Amended and Restated Credit Agreement dated November
17, 1998, a Second Amendment to Fourth Amended and Restated Credit Agreement
dated March 15, 1999, a Third Amendment to Fourth Amended and Restated Credit
Agreement dated June 21, 1999, a Fourth Amendment to Fourth Amended and Restated
Credit Agreement dated September 15, 1999, a Fifth Amendment to Fourth Amended
and Restated Credit Agreement dated December 1, 1999, a Limited Waiver and
Consent dated as of January 28, 2000, a Sixth Amendment to Fourth Amended and
Restated Credit Agreement dated as of June 12, 2000 and a Seventh Amendment to
Fourth Amended and Restated Credit Agreement dated as of October 11, 2000 (as
amended, the "Original Agreement") for the purposes and consideration therein
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expressed, pursuant to which Lenders became obligated to make and made 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
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(S) 1.1. Terms Defined in the Original Agreement. Unless the context
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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
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following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this Eighth Amendment to Fourth Amended and
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Restated Credit Agreement.
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"Amendment Documents" means this Amendment.
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"Credit Agreement" means the Original Agreement as amended
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hereby.
ARTICLE II. -- Amendments
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(S) 2.1. Definitions. (a) The definitions of "PAAI Transfer" and
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"Revolving Credit Termination Date" set forth in Section 1.01 of the Original
Agreement are hereby amended in their entirety to read as follows:
"PAAI Transfer" shall mean the occurrence of any of the following:
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(i) The Company, either directly or indirectly, shall cease to be the
legal and beneficial owner of 100% of the outstanding capital stock
of PAAI or 100% of the outstanding limited liability company
interests of PAAI LLC.
(ii) PAAI shall cease to be the legal and beneficial owner of 75% or more
of the ownership interests (including all securities which are
convertible into ownership interests) of Plains All American GP LLC
owned by PAAI immediately following the consummation of the PAAI Sale
Transaction.
(iii) The Company or any of its Subsidiaries, PAAI or PAAI LLC, or any
successor (by conversion, merger or otherwise) of any of them, or any
combination of the foregoing Persons, either directly or indirectly,
shall cease to be the legal and beneficial owner of 75% or more in
the aggregate of the number of limited partner units of the MLP owned
either directly or indirectly by the Company or any of its
Subsidiaries, PAAI, PAAI LLC or each successor (by conversion, merger
or otherwise) of each of them, or any combination of the foregoing
Persons, in the aggregate immediately following the consummation of
the PAAI Sale Transaction.
"Revolving Credit Termination Date" shall mean the earlier of (a) July
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1, 2003 and (b) the date on which the Commitment is reduced to zero or
terminated pursuant to Section 2.03 hereof.
(b) The following definition of "PAAI Sale Transaction" is hereby added to
Section 1.1 of the Original Agreement immediately following the definition of
"PAAI", to read as follows:
"PAAI Sale Transaction" means those transactions generally set forth
in the Company's Form 8-K filed with the Securities and Exchange Commission
on May 10, 2001 whereby the Company, PAAI and PAAI, LLC have entered into
one or more agreements providing in part for the sale and transfer by PAAI
of a portion of its general partner interests in the MLP and by PAAI LLC of
certain of its subordinated interests in the MLP, together with all other
transfers contemplated in connection therewith.
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(S) 2.2. Repayment of Term Loans. Section 3.01(b) of the Original
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Agreement is hereby amended in its entirety to read as follows:
(b) The Company will repay the principal of the Term Loans in
eight installments payable on each Quarterly Date beginning October 1,
2003, with the final installment being due and payable on or before July 1,
2005. Each such installment shall be equal to one-eighth of the original
principal amount of the Term Loans as of the Revolving Credit Termination
Date. In any event all unpaid principal and interest shall be due and
payable in full on the final maturity of July 1, 2005. As set forth in
Section 2.07(c), all optional and mandatory prepayments made on the Term
Loans shall be applied to the scheduled installments in inverse order of
their maturity.
(S) 2.3. Investments -- Stock Repurchases. Clause (c) of Section 8.11 of
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the Original Agreement, excluding the proviso at the end thereof, is hereby
amended to read as follows:
(c) one or more Dividend Payments in cash, all such cash payments made on
and after June 1, 2001 not to exceed $60,000,000 in the aggregate, to
purchase, redeem, retire or otherwise acquire or effect the conversion of
any shares of any one or more classes of stock of the Company,
(S) 2.4. Waiver re: Value Assurance to Purchasers of the MLP's
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Subordinated Units. In connection with the PAAI Sale Transaction, the Company
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may agree to make certain payments to the purchasers of the subordinated units
issued by the MLP sold thereby in an annual amount equal to $1.85 per such sold
subordinated unit minus the aggregate amount of all distributions per such sold
subordinated unit made by the MLP during such period. Such agreement, and
payments made pursuant thereto, may violate Section 8.35(b) of the Credit
Agreement, which would constitute an Event of Default under Section 9(d).
Lenders hereby consent to such agreement by the Company and any payments made in
connection therewith, and waive any violation of Section 8.35(b) or any Event of
Default caused thereby, provided, in no event shall such aggregate amount paid
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by the Company to such holders with respect to any fiscal year exceed
$10,020,000.
(S) 2.5. Consent re: Affiliate Transition Agreements. In connection with
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the PAAI Sale Transaction, the Company and/or its Subsidiaries may enter into
transitional agreements with Unrestricted Subsidiaries with respect to certain
management and operational matters, and such transactions with such Unrestricted
Subsidiaries may violate Section 8.35(b) of the Credit Agreement, which would
constitute an Event of Default under Section 9(d) of the Credit Agreement .
Lenders hereby consent to the Company and/or its Subsidiaries entry into such
transitional agreements with such Unrestricted Subsidiaries and waive any
violation of Section 8.35(b) or Event of Default caused thereby; provided, such
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transitional agreements shall be on terms which are no less favorable to the
Company or such Subsidiary than those which would have been obtainable at the
time in arm's-length transactions with Persons other than such Unrestricted
Subsidiaries.
(S) 2.6. Conversion of Series H Preferred; Retirement of Series F
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Preferred. In connection with the PAAI Sale Transaction, the Company may (i)
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convert certain outstanding
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shares of the Company's Series H Convertible Preferred Stock into common stock
of the Company, and (ii) receive and retire certain outstanding shares of the
Company's Series F Cumulative Convertible Preferred Stock, in each case without
cash payment by the Company to the holders thereof. In addition, the Company may
convert certain additional outstanding shares of the Company's Series F
Cumulative Convertible Preferred Stock into common stock of the Company, subject
to a cash payment by the Company to such holders in an amount with respect to
dividends accruing thereon until the consummation of the PAAI Sale Transaction.
Lenders hereby confirm that the conversion of such Series H Preferred Stock and
Series F Cumulative Convertible Preferred Stock, and the retirement of such
additional Series F Cumulative Convertible Preferred Stock, but not any cash
payment by the Company to any holder of such Series F Cumulative Convertible
Preferred Stock in exchange therefor, will not constitute a Dividend Payment.
Furthermore, Lenders hereby consent to the cash payment by the Company to such
holders of such Series F Cumulative Convertible Preferred Stock to effect such
conversion thereof, and waive any Event of Default related thereto, provided,
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the aggregate amount of all such payments shall not exceed $1,700,000 in the
aggregate.
(S) 2.7. New Borrowing Base -- PAAI Transfer. The consummation of the
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PAAI Sale Transaction will constitute a PAAI Transfer and entitle Lenders to a
redetermination of the Borrowing Base pursuant to Section 2.08. Pursuant to
Section 2.08 of the Credit Agreement, Agent hereby notifies the Company that
Supermajority Lenders have redetermined the Borrowing Base as $225,000,000,
effective for the period beginning on and including the date hereof and
continuing until but not including the next date as of which the Borrowing Base
is redetermined. Lenders hereby waive their right to redetermine the Borrowing
Base upon the consummation of the PAAI Sale Transaction and resultant PAAI
Transfer.
ARTICLE III. -- Conditions of Effectiveness
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(S) 3.1. Effective Date. This Amendment shall become effective
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contemporaneous with the consummation of the PAAI Sale Transaction 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 each Lender, and (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
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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.
(B) Supporting Documents. Such supporting documents as Agent may
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reasonably request.
ARTICLE IV. -- Representations and Warranties
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(S) 4.1. Representations and Warranties of the Company. In order to
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induce Agent and Lenders to enter into this Amendment, the Company represents
and warrants to Agent and Lenders that:
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(a) The representations and warranties contained in Section 7 of the
Original Agreement, are true and correct at and as of the time of the
effectiveness hereof, except to the extent that such representation or
warranty was made as of a specific date or updated, modified or
supplemented as of a subsequent date with the consent of Majority Lenders[,
subject to, in regard to the penultimate sentence of Section 7.02, the
Unauthorized Trading Losses, as referred to in the Company's annual report
on Form 10-K for the year ended December 31, 1999.] No Default has
occurred and is continuing.
(b) The Company and the Subsidiaries are duly authorized to execute
and deliver this Amendment and the other Amendment Documents to the extent
a party thereto, 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 the other
Amendment Documents, to the extent a party thereto, and to authorize the
performance of their respective obligations thereunder.
(c) The execution and delivery by the Company and the Subsidiaries of
this Amendment and the other Amendment Documents, to the extent a party
thereto, the performance by the Company and the Subsidiaries of their
respective obligations hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby, 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 any other Amendment Document, to the extent a party thereto, or to
consummate the transactions contemplated hereby and thereby.
(d) When this Amendment and the other Amendment Documents have been
duly executed and delivered, each of the Basic Documents, as amended by
this Amendment and the other Amendment Documents, will be a legal and
binding instrument and agreement of the Company and the Subsidiaries, to
the extent a party thereto, 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
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(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
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amended, is hereby ratified and confirmed in all respects. The Basic Documents,
as they may be amended or affected by this Amendment and/or the other Amendment
Documents, are hereby ratified and confirmed in all respects. Any reference to
the Credit Agreement in any Basic Document shall
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be deemed to refer to this Amendment also. The execution, delivery and
effectiveness of this Amendment and the other Amendment Documents shall not,
except as expressly provided herein or therein, 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
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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,
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covenants and agreements of the Company herein and in the other Amendment
Documents shall survive the execution and delivery of this Amendment and the
other Amendment Documents and the performance hereof and thereof, 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, under the other Amendment Documents 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 and each of the other Amendment
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Documents is a Basic Document, and all provisions in the Credit Agreement
pertaining to Basic Documents apply hereto and thereto.
(S) 5.5. GOVERNING LAW. THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS
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SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
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NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA IN ALL
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RESPECTS, INCLUDING CONSTRUCTION, VALIDITY AND PERFORMANCE.
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(S) 5.6. Counterparts. This Amendment and each of the other Amendment
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Documents 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 or Amendment Document, as the
case may be.
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS RESOURCES INC.
By:___________________________________________
Name:
Title:
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FIRST UNION NATIONAL BANK,
as Agent, LC Issuer and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.), Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
BANK OF AMERICA, N.A., Lender
By:____________________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By:____________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
(successor to Chase Bank of Texas, N.A.), Lender
By:____________________________________________
Name:
Title:
COMERICA BANK-TEXAS, Lender
By:____________________________________________
Name:
Title:
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FORTIS CAPITAL CORP.
(f/k/a MeesPierson Capital Corp.), Lender
By:____________________________________________
Name:
Title:
By:____________________________________________
Name:
Title:
BANK OF SCOTLAND, Lender
By:____________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, Lender
By:____________________________________________
Name:
Title:
HIBERNIA NATIONAL BANK, Lender
By:____________________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION, Lender
By:____________________________________________
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO), Lender
By:____________________________________________
Name:
Title:
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CONSENT AND AGREEMENT
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Each of the undersigned Subsidiary Guarantors hereby consents to the
provisions of this Amendment and the transactions contemplated herein and hereby
(i) acknowledges and agrees that any and all indebtedness, liabilities or
obligations arising under or in connection with the Notes are Obligations and
are secured indebtedness under, and are 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, (iii) ratifies and confirms its Amended and Restated
Guaranty dated May 22, 1998 made by it for the benefit of Agent and Lenders, and
(iv) expressly acknowledges and agrees that such Subsidiary Guarantor guarantees
all indebtedness, liabilities and obligations arising under or in connection
with the 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.
PLAINS RESOURCES INTERNATIONAL INC.
▇▇▇▇▇▇▇ RESOURCES, INC.
PLAINS ILLINOIS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
____________________________________________
▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
▇▇▇▇▇▇▇ RESOURCES, L.P.
By: ▇▇▇▇▇▇▇ Resources, Inc.,
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
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The undersigned Subsidiary Guarantor hereby consents to the provisions of
this Amendment and the transactions contemplated herein and hereby (i)
acknowledges and agrees that any and all indebtedness, liabilities or
obligations arising under or in connection with the Notes are Obligations and
are secured indebtedness under, and are 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, (iii) ratifies and confirms its Guaranty dated July 1,
1999 made by it for the benefit of Agent and Lenders, and (iv) expressly
acknowledges and agrees that such Subsidiary Guarantor guarantees all
indebtedness, liabilities and obligations arising under or in connection with
the Notes pursuant to the terms of such Guaranty, and agrees that its
obligations and covenants thereunder are unimpaired hereby and shall remain in
full force and effect.
▇▇▇▇▇▇▇▇ INC.
By:____________________________________________
Name:
Title:
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