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EXHIBIT 10.38
FOURTH AMENDMENT
TO CREDIT AND GUARANTY AGREEMENT
This FOURTH AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this
"AMENDMENT") is dated as of December 28, 2007 and is entered into
by and among
PACIFIC ENERGY RESOURCES LTD., a Delaware corporation ("COMPANY"),
CERTAIN
SUBSIDIARIES OF COMPANY, as Guarantors, CERTAIN FINANCIAL
INSTITUTIONS listed on
the signature pages hereto (the "LENDERS"), J. ARON & COMPANY
("J. ARON"), as
administrative agent (together with its permitted successor in such
capacity,
"ADMINISTRATIVE AGENT"), and, for purposes of Section IV hereof,
the CREDIT
SUPPORT PARTIES listed on the signature papers hereto, and is made
with
reference to that certain CREDIT AND GUARANTY AGREEMENT, dated as
of November
30, 2006 (as amended through the date hereof, the "CREDIT
AGREEMENT"), by and
among Company, the subsidiaries of Company named therein, the
lenders party
thereto, and J. Aron, as Lead Arranger, Syndication Agent, and
Administrative
Agent. Capitalized terms used herein without definition shall have
the same
meanings herein as set forth in the Credit Agreement after giving
effect to this
Amendment.
RECITALS
WHEREAS, the Credit Parties have requested that Required Lenders
agree
to amend certain provisions of the Credit Agreement as provided for
herein; and
WHEREAS, subject to certain conditions, Required Lenders are
willing to
agree to such amendment relating to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the
agreements,
provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 2.13
(a) Section 2.13(e) is hereby amended by replacing the words
"December
31, 2007" with "January 15, 2008" in the first instance such words
appear
therein.
1.2 AMENDMENTS TO SECTION 5.30
(a) Section 5.30(b) is hereby amended by replacing the words
"December
31, 2007" with "January 15, 2008" in the first instance such words
appear
therein.
SECTION II. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof only
upon
the satisfaction of all of the following conditions precedent (the
date of
satisfaction of such conditions being referred to herein as the
("FOURTH
AMENDMENT EFFECTIVE DATE"):
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A. EXECUTION. Administrative Agent shall have received a
counterpart
signature page of this Amendment duly executed by each of the
Credit Parties and
Required Lenders.
B. FEES. The Administrative Agent and Silver Point shall have
received
all invoiced fees and other amounts due and payable on or prior to
the Fourth
Amendment Effective Date, including, to the extent invoiced,
reimbursement or
other payment of all out-of-pocket expenses required to be
reimbursed or paid by
Company hereunder.
C. NECESSARY CONSENTS. Each Credit Party shall have obtained
all
material consents necessary or advisable in connection with the
transactions
contemplated by this Amendment.
D. NO DEFAULT. No event shall have occurred and be continuing
that
would constitute an Event of Default or a Default.
E. ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and
warranties as set forth herein shall be true and correct in all
material
respects on and as of the Fourth Amendment Effective Date to the
same extent as
though made on and as of that date, except to the extent such
representations
and warranties specifically relate to an earlier date, in which
case they were
true and correct in all material respects on and as of such earlier
date
F. OTHER DOCUMENTS. Administrative Agent and Lenders shall have
received (i) a fully executed copy of the First Amendment to the
PEA Second Lien
Credit Agreement, dated as of December 28, 2007 and (ii) such other
documents,
information or agreements regarding Credit Parties as
Administrative Agent or
Collateral Agent may reasonably request.
SECTION III. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend
the Credit Agreement in the manner provided herein, each Credit
Party which is a
party hereto represents and warrants to each Lender executing and
delivering
this Amendment that the following statements are true and correct
in all
material respects:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party, which is
party
hereto, has all requisite power and authority to enter into this
Amendment and
to carry out the transactions contemplated by, and perform its
obligations
under, the Credit Agreement as amended by this Amendment (the
"AMENDED
AGREEMENT") and the other Transaction Documents.
B. AUTHORIZATION OF AGREEMENTS. Each Credit Party has duly taken
all
company action necessary to authorize the execution and delivery by
it of the
Amendment, the Amended Agreement and the other Transaction
Documents to which it
is a party and to authorize the consummation of the transactions
contemplated
thereby and the performance of its obligations thereunder. Company
is duly
authorized to borrow funds under the Credit Agreement.
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C. NO CONFLICT. The execution and delivery by the Credit Parties
of
this Amendment and the Amended Agreement and the other Transaction
Documents,
the performance by each of its obligations hereunder and thereunder
and the
consummation of the transactions contemplated hereby and thereby do
not and will
not (i) conflict with any provision of (A) any Law, (B) the
Organizational
Documents of any Credit Party, or (C) any agreement, judgment,
license, order or
permit applicable to or binding upon any Credit Party, (ii) result
in the
acceleration of a
