FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
made as of the 31st day of March, 1995 by and among Plains Petroleum Operating
Company ("Borrower"), Plains Petroleum Company ("Parent"), NationsBank of Texas,
N.A. ("NationsBank"), as Agent ("Agent"), and NationsBank and Colorado National
Bank ("CNB"), as Lenders ("Lenders").
W I T N E S S E T H:
WHEREAS, Borrower, Parent and NationsBank, individually and as Agent, have
entered into that certain Credit Agreement dated as of February 17, 1995 (the
"Original Agreement") for the purposes and consideration therein expressed,
pursuant to which NationsBank became obligated to make and has made loans to
Borrower as therein provided; and
WHEREAS, pursuant to that certain Assignment and Assumption of even date
herewith, NationsBank has assigned to CNB a Percentage Share under the Credit
Agreement equal to twenty percent (20%) of the commitment and Loans outstanding
on the date hereof; and
WHEREAS, Borrower, Agent and Lenders desire to amend the Original Agreement
to amend the definition of "Majority Lenders";
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 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" means this First Amendment to Credit Agreement.
"CREDIT AGREEMENT" means the Original Agreement as amended hereby.
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ARTICLE II. -- AMENDMENT TO ORIGINAL AGREEMENT
Section 2.1. DEFINED TERMS. The definition of "Majority Lenders" in
Section 1.1. of the Original Agreement is hereby amended in its entirety to read
as follows:
"'MAJORITY LENDERS' means at any time two or more Lenders collectively
having Percentage Shares totaling in the aggregate at least sixty-six and
two-thirds percent (66 2/3%)."
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, Parent and each Lender and (ii) Agent shall have additionally received
duly authorized, executed and delivered, and in form and substance satisfactory
to Agent, such supporting documents as Agent may reasonably request.
ARTICLE IV. -- REPRESENTATIONS AND WARRANTIES
Section 4.1. REPRESENTATIONS AND WARRANTIES OF BORROWER AND PARENT. In
order to induce Agent and Lenders to enter into this Amendment, each of Borrower
and Parent represents and warrants to Agent and Lenders that:
(a) Each of Borrower and Parent is duly authorized to execute and
deliver this Amendment and is and will continue to be duly authorized to
perform its obligations under the Credit Agreement. Borrower is and will
continue to be duly authorized to borrow under the Credit Agreement. Each
of Borrower and Parent has duly taken all corporate action necessary to
authorize the execution and delivery of this Amendment and to authorize the
performance of its obligations hereunder.
(b) The execution and delivery by each of Borrower and Parent of this
Amendment, the performance by each of them of their 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 either of their certificates of incorporation or bylaws, or of any
material agreement, judgment, license, order or permit applicable to or
binding upon either of them, or result in the creation of any lien, charge
or encumbrance upon any of their assets or properties. 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 either Borrower or Parent of
this Amendment or to consummate the transactions contemplated hereby.
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(c) When duly executed and delivered, each of this Amendment and the
Credit Agreement will be a legal and binding instrument and agreement of
each of Borrower and Parent, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency and similar laws applying to
creditors' rights generally and by principles of equity applying to
creditors' rights generally.
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 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 Loan
Document nor constitute a waiver of any provision of the Credit Agreement or any
other Loan Document.
Section 5.2. SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower and Parent herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making or granting of the Loan, and shall further survive
until all of the Obligations are paid in full.
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. 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.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS PETROLEUM OPERATING COMPANY
By:/s/ William F. Wallace
----------------------------------------------
William F. Wallace
President and Chief Operating Officer
PLAINS PETROLEUM COMPANY
By:/s/ James A. Miller
----------------------------------------------
James A. Miller
President and Chief Executive Officer
NATIONSBANK OF TEXAS, N.A.,
individually and as Agent
By:/s/ Franklyn L. Muscara
----------------------------------------------
Franklyn L. Muscara
Senior Vice President
COLORADO NATIONAL BANK
By:/s/ Monte Deckerd
----------------------------------------------
Monte Deckerd
Vice President
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AGREEMENT TO BE BOUND
March 31, 1995
PLAINS PETROLEUM OPERATING COMPANY
12596 West Bayaud, Suite 400
Lakewood, Colorado 80228
Attention: William F. Wallace
NATIONSBANK OF TEXAS, N.A.
901 Main Street, 49th Floor
Dallas, Texas 75202
Attention: Energy Banking Group
Re: Assignment to Colorado National Bank of certain of the commitment and
Loans of NationsBank of Texas., N.A.
Ladies and Gentlemen:
We refer to Section 9.10(a) of the Credit Agreement, dated as of February
17, 1995 (as from time to time supplemented, amended, or restated, the "CREDIT
AGREEMENT"), by and among Plains Petroleum Operating Company ("BORROWER"),
Plains Petroleum Company, NationsBank of Texas, N.A., as Agent ("AGENT"), and
the Lenders as are, or may from time to time become, party thereto. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
This Agreement constitutes notice to each of you, pursuant to Section
9.10(a) of the Credit Agreement, of the assignment to Colorado National Bank
("ASSIGNEE") of (i) an undivided twenty percent (20%) (the "DESIGNATED
PERCENTAGE"), ($30,000,000), of the commitment and Loans of NationsBank of
Texas, N.A. ("ASSIGNOR") in effect on the date hereof.
Assignee hereby acknowledges and confirms that it has received a copy of
the Credit Agreement and the exhibits related thereto, together with a copy of
the documents which were required to be delivered under the Credit Agreement as
a condition to the making of the Loans thereunder. Assignee further confirms
and agrees that in becoming a Lender and in making its Loans under the Credit
Agreement, such actions have and will be made without recourse to, or
representation or warranty by, Assignor, except as expressly set forth in the
Assignment and Assumption of even date herewith between Assignor and Assignee.
The assignment shall become effective on the date which is five (5)
Business Days after the later of (i) the receipt by the Agent of this document
and (ii) the receipt of the processing fee referred to in the preceding
paragraph.
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Upon the effective date of this Agreement each Lender:
(a) shall have all the rights and benefits of a "Lender" under the Credit
Agreement as if it were an original signatory thereto; and
(b) agrees to be bound by the terms and conditions set forth in the Credit
Agreement and be obligated thereunder as if it were an original signatory
thereto.
Assignee hereby advises each of you of the following administrative details
with respect to the assigned commitment and Loans.
(A) Addresses for Notice: 950 17th Street, 3rd Floor
Denver, Colorado 80231
Telephone: (303) 585-4212
Telecopy: (303) 585-4362
Institution Name: Colorado National Bank
Attention: Monte Deckerd, Vice President
(B) Payment Instructions:
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This Agreement may be executed by Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
executed by its official, officer or agent thereunto duly authorized.
NATIONSBANK OF TEXAS, N.A., COLORADO NATIONAL BANK,
As Assignor As Assignee
By:/s/ Franklyn L. Muscara By:/s/ Monte Deckerd
--------------------------- -----------------------
Franklyn L. Muscara Monte Deckerd
Senior Vice President Vice President
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The foregoing Agreement to be Bound and related assignment from Assignee to
Assignor is hereby CONSENTED TO this 31st day of
March, 1995. Agent hereby agrees to waive the processing fee referred to in
Section 9.10(a) of the Credit Agreement.
NATIONSBANK OF TEXAS, N.A., as Agent
By:/s/ Franklyn L. Muscara
----------------------------------
Franklyn L. Muscara
Senior Vice President
PLAINS PETROLEUM OPERATING COMPANY
By:/s/ William F. Wallace
---------------------------------
William F. Wallace
President and Chief Operating Officer
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ASSIGNMENT AND ASSUMPTION
Dated March 31, 1995
Reference is made to the Credit Agreement dated as of February 17, 1995
(the "CREDIT AGREEMENT"), by and among Plains Petroleum Operating Company
("BORROWER"), Plains Petroleum Company, NationsBank of Texas, N.A., as Agent
("AGENT"), and the Lenders as are, or may from time to time become, party
thereto. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement.
NationsBank of Texas, N.A. ("ASSIGNOR") and Colorado National Bank
("ASSIGNEE") agree as follows:
1. As of the Effective Date (as defined below), Assignor hereby sells and
assigns to Assignee, and Assignee hereby purchases and assumes from Assignor, a
Percentage Share under the Credit Agreement equal to twenty percent (20%) of the
commitment in effect as of the date hereof and twenty percent (20%) of the
commitment and Loans outstanding on the Effective Date; excluding, however,
interest with respect to such Loans accrued to the Effective Date.
2. Contemporaneously herewith, Assignee has made payment to Assignor of an
amount equal to 20% of the principal amount of Loans outstanding on the
Effective Date.
3. Assignor (i) represents that as of the date hereof, the outstanding
balance of the Loans is $34,500,000; (ii) makes no representation or warranty,
and assumes no responsibility with respect to any statements, warranties or
representations made by the Company, in or in connection with the Credit
Agreement or with the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) represents and warrants
that it is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (iv)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or the performance or observance by
the Company of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (v) requests that the
Agent exchange such Note for a new Note payable to Assignee in a principal
amount equal to $30,000,000 and a new Note payable to Assignor in a principal
amount equal to $120,000,000.
4. Assignee (i) represents and warrants that it is legally authorized to
enter into this Assignment and Assumption; (ii) confirms that it has received a
copy of the Credit Agreement, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision
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to enter into this Assignment and Assumption; (iii) agrees that it will,
independently and without reliance upon the Agent or Assignor and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) appoints and authorizes Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all the obligations of Assignor under the Credit Agreement
assumed by it under this Assignment and Assumption, which by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi) agrees
that it will keep confidential all information with respect to the Company
furnished to it by the Company or Assignor as set forth in Section 5.1(c) of the
Agreement.
5. The effective date for this Assignment and Assumption shall be March
31, 1995 (the "EFFECTIVE DATE"). Following the execution of this Assignment and
Assumption, it will be delivered to the Agent for acceptance.
6. Upon such acceptance, from and after the Effective Date, (i) Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Assumption, have the rights and obligations of a Lender
thereunder and (ii) Assignor shall, to the extent provided in this Assignment
and Assumption, relinquish its rights and be released from its obligations under
the Credit Agreement.
7. Upon such acceptance, from and after the Effective Date, the Agent
shall make all payments in respect of the percentage interest assigned hereby
(including payments of principal, plus payments of interest, fees and other
amounts accrued in respect of the percentage interest assigned hereby after the
Effective Date) to Assignee. Agent is hereby instructed to make payment to
Assignor of interest, fees and other amounts accrued to the Effective Date in
respect of the percentage interests assigned hereby.
8. This Assignment and Assumption shall be governed by, and construed in
accordance with, the laws of the State of Texas, without regard to principles of
conflicts of law. This Assignment and Assumption may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
agreement.
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NATIONSBANK OF TEXAS, N.A.
By:/s/ Franklyn L. Muscara
------------------------------------------
Franklyn L. Muscara
Senior Vice President
COLORADO NATIONAL BANK
By:/s/ Monte Deckerd
------------------------------------------
Monte Deckerd
Vice President
Accepted this 31st day
of March, 1995
NationsBank of Texas, N.A., as Agent
By:/s/ Franklyn L. Muscara
---------------------------
Franklyn L. Muscara
Senior Vice President
Plains Petroleum Operating Company
By:/s/ William F. Wallace
---------------------------
William F. Wallace
President and Chief Operating Officer
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PROMISSORY NOTE
$120,000,000 Dallas, Texas March 31, 1995
FOR VALUE RECEIVED, the undersigned, Plains Petroleum Operating Company, a
Delaware corporation (herein called "Borrower"), hereby promises to pay to the
order of NATIONSBANK OF TEXAS, N.A., a national banking association (herein
called "Lender"), the principal sum of ONE HUNDRED TWENTY MILLION AND NO/100
DOLLARS ($120,000,000), or, if greater or less, the aggregate unpaid principal
amount of the Loan made under this Note by Lender to Borrower pursuant to the
terms of the Credit Agreement (as hereinafter defined), together with interest
on the unpaid principal balance thereof as hereinafter set forth, both principal
and interest payable as herein provided in lawful money of the United States of
America at the offices of the Agent under the Credit Agreement, 901 Main Street,
Dallas, Texas 75202 or at such other place within Dallas County, Texas, as from
time to time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain Credit Agreement
dated February 17, 1995 among Borrower, Plains Petroleum Company, NationsBank of
Texas, N.A., as Agent, and the lenders (including Lender) referred to therein
(herein, as from time to time supplemented, amended or restated, called the
"Credit Agreement"), and is a "Note" as defined therein, and (b) is subject to
the terms and provisions of the Credit Agreement, which contains provisions for
payments and prepayments hereunder and acceleration of the maturity hereof upon
the happening of certain stated events. Payments on this Note shall be made and
applied as provided herein and in the Credit Agreement. Reference is hereby
made to the Credit Agreement for a description of certain rights, limitations of
rights, obligations and duties of the parties hereto and for the meanings
assigned to terms used and not defined herein.
For the purposes of this Note, the following terms have the meanings
assigned to them below:
"Base Rate Payment Date" means (i) the first day of each January,
April, July and October of each year, beginning April 1, 1995, and (ii) any
day on which past due interest or principal is owed hereunder and is
unpaid. If the terms hereof or of the Credit Agreement provide that
payments of interest or principal hereon shall be deferred from one Base
Rate Payment Date to another day, such other day shall also be a Base Rate
Payment Date.
"Fixed Rate Payment Date" means, with respect to any Fixed Rate
Portion: (i) the day on which the related Interest Period ends and if such
Interest Period is more than 90 days, the day which is 90 days after the
first day
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of such Interest Period shall also be a Fixed Rate Payment Date, and (ii)
any day on which past due interest or past due principal is owed hereunder
with respect to such Fixed Rate Portion and is unpaid. If the terms hereof
or of the Credit Agreement provide that payments of interest or principal
with respect to such Fixed Rate Portion shall be deferred from one Fixed
Rate Payment Date to another day, such other day shall also be a Fixed Rate
Payment Date.
The principal amount of this Note shall be due and payable in twenty-four
quarterly installments, each of which shall be equal to one-twenty-fourth
(1/24th) of the aggregate unpaid principal balance of this Note at the end of
the Commitment Period, and shall be due and payable on the first day of January,
April, July, and October of each year, beginning April 1, 1997 and continuing
regularly thereafter until January 1, 2003, at which time the unpaid principal
balance of this Note and all interest accrued hereon shall be due and payable in
full.
The Base Rate Portion of the Loan (exclusive of any past due principal or
interest) from time to time outstanding shall bear interest on each day
outstanding at the Base Rate in effect on such day. On each Base Rate Payment
Date Borrower shall pay to the holder hereof all unpaid interest which has
accrued on the Base Rate Portion to but not including such Base Rate Payment
Date. Each Fixed Rate Portion of the Loan (exclusive of any past due principal
or interest) shall bear interest on each day during the related Interest Period
at the related Fixed Rate in effect on such day. On each Fixed Rate Payment
Date relating to such Fixed Rate Portion Borrower shall pay to the holder hereof
all unpaid interest which has accrued on such Fixed Rate Portion to but not
including such Fixed Rate Payment Date. All past due principal of and past due
interest on the Loan shall bear interest on each day outstanding at the Late
Payment Rate in effect on such day, and such interest shall be due and payable
daily as it accrues. Notwithstanding the foregoing provisions of this
paragraph: (a) this Note shall never bear interest in excess of the Highest
Lawful Rate, and (b) if at any time the rate at which interest is payable on
this Note is limited by the Highest Lawful Rate (by the foregoing clause (a) or
by reference to the Highest Lawful Rate in the definitions of Base Rate, Fixed
Rate, and Late Payment Rate), this Note shall bear interest at the Highest
Lawful Rate and shall continue to bear interest at the Highest Lawful Rate until
such time as the total amount of interest accrued hereon equals (but does not
exceed) the total amount of interest which would have accrued hereon had there
been no Highest Lawful Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other provisions of this
Note, in no event shall the interest payable hereon, whether before or after
maturity, exceed the maximum amount of interest which, under applicable law, may
be charged on this Note, and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event
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applicable law provides for a ceiling under Texas Revised Civil Statutes
Annotated article 5069-1.04, that ceiling shall be the indicated rate ceiling
and shall be used in this Note for calculating the Highest Lawful Rate and for
all other purposes. The term "applicable law" as used in this Note shall mean
the laws of the State of Texas or the laws of the United States, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower and all endorsers, sureties
and guarantors of this Note jointly and severally agree to pay reasonable
attorneys' fees and collection costs to the holder hereof in addition to the
principal and interest payable hereunder.
Borrower and all endorsers, sureties and guarantors of this Note hereby
severally waive demand, presentment, notice of demand and of dishonor and
nonpayment of this Note, protest, notice of protest, notice of intention to
accelerate the maturity of this Note, declaration or notice of acceleration of
the maturity of this Note, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any extensions,
renewals, partial payments or changes in any manner of or in this Note or in any
of its terms, provisions and covenants, or any releases or substitutions of any
security, or any delay, indulgence or other act of any trustee or any holder
hereof, whether before or after maturity.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW), EXCEPT TO THE EXTENT THE SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PLAINS PETROLEUM OPERATING COMPANY
By:/s/ William F. Wallace
------------------------------------
William F. Wallace
President and Chief Operating Officer
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PROMISSORY NOTE
$30,000,000 Dallas, Texas March 31, 1995
FOR VALUE RECEIVED, the undersigned, Plains Petroleum Operating Company, a
Delaware corporation (herein called "Borrower"), hereby promises to pay to the
order of COLORADO NATIONAL BANK, a national banking association (herein called
"Lender"), the principal sum of THIRTY MILLION AND NO/100 DOLLARS ($30,000,000),
or, if greater or less, the aggregate unpaid principal amount of the Loan made
under this Note by Lender to Borrower pursuant to the terms of the Credit
Agreement (as hereinafter defined), together with interest on the unpaid
principal balance thereof as hereinafter set forth, both principal and interest
payable as herein provided in lawful money of the United States of America at
the offices of the Agent under the Credit Agreement, 901 Main Street, Dallas,
Texas 75202 or at such other place within Dallas County, Texas, as from time to
time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain Credit Agreement
dated February 17, 1995 among Borrower, Plains Petroleum Company, NationsBank of
Texas, N.A., as Agent, and the lenders (including Lender) referred to therein
(herein, as from time to time supplemented, amended or restated, called the
"Credit Agreement"), and is a "Note" as defined therein, and (b) is subject to
the terms and provisions of the Credit Agreement, which contains provisions for
payments and prepayments hereunder and acceleration of the maturity hereof upon
the happening of certain stated events. Payments on this Note shall be made and
applied as provided herein and in the Credit Agreement. Reference is hereby
made to the Credit Agreement for a description of certain rights, limitations of
rights, obligations and duties of the parties hereto and for the meanings
assigned to terms used and not defined herein.
For the purposes of this Note, the following terms have the meanings
assigned to them below:
"Base Rate Payment Date" means (i) the first day of each January,
April, July and October of each year, beginning April 1, 1995, and (ii) any
day on which past due interest or principal is owed hereunder and is
unpaid. If the terms hereof or of the Credit Agreement provide that
payments of interest or principal hereon shall be deferred from one Base
Rate Payment Date to another day, such other day shall also be a Base Rate
Payment Date.
"Fixed Rate Payment Date" means, with respect to any Fixed Rate
Portion: (i) the day on which the related Interest Period ends and if such
Interest Period is more than 90 days, the day which is 90 days after the
first day
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of such Interest Period shall also be a Fixed Rate Payment Date, and (ii)
any day on which past due interest or past due principal is owed hereunder
with respect to such Fixed Rate Portion and is unpaid. If the terms hereof
or of the Credit Agreement provide that payments of interest or principal
with respect to such Fixed Rate Portion shall be deferred from one Fixed
Rate Payment Date to another day, such other day shall also be a Fixed Rate
Payment Date.
The principal amount of this Note shall be due and payable in twenty-four
quarterly installments, each of which shall be equal to one-twenty-fourth
(1/24th) of the aggregate unpaid principal balance of this Note at the end of
the Commitment Period, and shall be due and payable on the first day of January,
April, July, and October of each year, beginning April 1, 1997 and continuing
regularly thereafter until January 1, 2003, at which time the unpaid principal
balance of this Note and all interest accrued hereon shall be due and payable in
full.
The Base Rate Portion of the Loan (exclusive of any past due principal or
interest) from time to time outstanding shall bear interest on each day
outstanding at the Base Rate in effect on such day. On each Base Rate Payment
Date Borrower shall pay to the holder hereof all unpaid interest which has
accrued on the Base Rate Portion to but not including such Base Rate Payment
Date. Each Fixed Rate Portion of the Loan (exclusive of any past due principal
or interest) shall bear interest on each day during the related Interest Period
at the related Fixed Rate in effect on such day. On each Fixed Rate Payment
Date relating to such Fixed Rate Portion Borrower shall pay to the holder hereof
all unpaid interest which has accrued on such Fixed Rate Portion to but not
including such Fixed Rate Payment Date. All past due principal of and past due
interest on the Loan shall bear interest on each day outstanding at the Late
Payment Rate in effect on such day, and such interest shall be due and payable
daily as it accrues. Notwithstanding the foregoing provisions of this
paragraph: (a) this Note shall never bear interest in excess of the Highest
Lawful Rate, and (b) if at any time the rate at which interest is payable on
this Note is limited by the Highest Lawful Rate (by the foregoing clause (a) or
by reference to the Highest Lawful Rate in the definitions of Base Rate, Fixed
Rate, and Late Payment Rate), this Note shall bear interest at the Highest
Lawful Rate and shall continue to bear interest at the Highest Lawful Rate until
such time as the total amount of interest accrued hereon equals (but does not
exceed) the total amount of interest which would have accrued hereon had there
been no Highest Lawful Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other provisions of this
Note, in no event shall the interest payable hereon, whether before or after
maturity, exceed the maximum amount of interest which, under applicable law, may
be charged on this Note, and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event
-30-
applicable law provides for a ceiling under Texas Revised Civil Statutes
Annotated article 5069-1.04, that ceiling shall be the indicated rate ceiling
and shall be used in this Note for calculating the Highest Lawful Rate and for
all other purposes. The term "applicable law" as used in this Note shall mean
the laws of the State of Texas or the laws of the United States, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower and all endorsers, sureties
and guarantors of this Note jointly and severally agree to pay reasonable
attorneys' fees and collection costs to the holder hereof in addition to the
principal and interest payable hereunder.
Borrower and all endorsers, sureties and guarantors of this Note hereby
severally waive demand, presentment, notice of demand and of dishonor and
nonpayment of this Note, protest, notice of protest, notice of intention to
accelerate the maturity of this Note, declaration or notice of acceleration of
the maturity of this Note, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any extensions,
renewals, partial payments or changes in any manner of or in this Note or in any
of its terms, provisions and covenants, or any releases or substitutions of any
security, or any delay, indulgence or other act of any trustee or any holder
hereof, whether before or after maturity.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW), EXCEPT TO THE EXTENT THE SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PLAINS PETROLEUM OPERATING COMPANY
By:/s/ William F. Wallace
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William F. Wallace
President and Chief Operating Officer
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