EXHIBIT 10.36
TO: The Lenders under the Amended and Restated Credit Agreement (LETTER OF
CREDIT AND HEDGED INVENTORY FACILITY) dated as of May 4, 2001, as amended
and in effect through the Third Amendment thereto (the "Agreement"), among
Plains Marketing, L.P. ("Borrower"), All American Pipeline, L.P. and Plains
All American Pipeline, L.P., as guarantors, Fleet National Bank, as
Administrative Agent, and the Lenders named therein.
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Ladies and Gentlemen:
Capitalized terms used herein and not otherwise defined shall have the
meaning given them in the Agreement, and reference is hereby made to the
Agreement for all purposes in connection herewith. This Amendment is a Loan
Document.
All American proposes to purchase certain pipeline assets and equity
interests in partnerships owning certain pipeline assets as previously disclosed
by US Borrower to Administrative Agent and Lenders (the "Subject Acquisition").
The cash purchase price of the Subject Acquisition is approximately
$147,000,000, plus a contingent payment of up to $30,000,000 (the "Contingent
Payment Obligation"); provided, in the event certain third-party rights to
purchase certain of the assets are exercised (the "First Refusal Rights"), such
purchase price will be approximately $114,000,000, plus the Contingent Payment
Obligation. The Subject Acquisition does not constitute a Permitted Acquisition
and therefore is not permitted under Section 7.7(c) of the Agreement.
US Borrower is seeking consent to the Subject Acquisition, including the
exclusion of the Contingent Payment Obligation as a Liability.
The undersigned Lender hereby consents to the treatment of the Subject
Acquisition as if it were a Permitted Acquisition, and to the exclusion of the
Contingent Payment Obligation as a Liability, subject to the following:
(a) Administrative Agent shall have received and approved copies of
all environmental evaluations, reports or reviews related to properties to
be acquired pursuant to the Subject Acquisition.
(b) Administrative Agent and each Lender shall have received any
updated or revised business and/or financial projections with respect to
the assets and operations to be acquired pursuant to the Subject
Acquisition, and, except for (i) adjustments in the event of the exercise
of the First Refusal Rights, or (ii) revisions accompanied by a
corresponding purchase price adjustment, no such projection shall
materially and adversely differ from those projections previously delivered
to Administrative Agent and Lenders.
(c) All American, as acquirer, shall have received an environmental
indemnity with respect to individual claims greater than $200,000 ("Covered
Claims") as follows: (i) 50% of Covered Claims which in the aggregate
exceed $2,000,000 but do not exceed $6,000,000, and (ii) 100% of Covered
Claims which in the aggregate exceed $6,000,000
but do not exceed $30,000,000, to be effective for not less than two years
following the Subject Acquisition closing date, and otherwise reasonably
satisfactory to Administrative Agent with respect to such liabilities.
(d) Administrative Agent shall have received and approved copies of
all documentation relating to the Subject Acquisition documents and all
other related documents as Administrative Agent may request.
(e) The cash portion of the purchase price, together with associated
transaction costs and expenses, shall not exceed $160,000,000, plus the
Contingent Payment Obligation; provided, in the event of the exercise of
the First Refusal Rights, the cash portion of the purchase price, together
with associated transaction costs and expenses, shall not exceed
$127,000,000, plus the Contingent Payment Obligation.
(f) Both immediately prior to and immediately following the
consummation of the Subject Acquisition, no Material Adverse Change shall
have occurred since December 31, 2000, and no Default or Event of Default
shall have occurred and be continuing.
(g) All American shall have delivered Security Documents pursuant to
Section 6.14 of the Agreement with respect to the assets acquired pursuant
to the Subject Acquisition, provided, with respect to those assets
constituting undivided interests in joint venture pipeline assets or
general partnership interests requiring the consent or approval of third
parties to the delivery of such Security Documents, All American shall use
its commercially reasonable best efforts, as determined by Administrative
Agent, to deliver such Security Documents with respect to such assets.
The effectiveness of this Amendment shall be conditioned upon the
contemporaneous effectiveness of an amendment to the Revolver Agreement on
substantially identical terms and shall become effective upon (i) consent of
Majority Lenders, (ii) acceptance hereof by Borrower, and (iii) payment of a
$5,000 consent fee to each Lender (unless such Lender shall have received such
consent fee pursuant to the amendment to the Revolver Agreement). Please
execute a copy of this letter in the space provided below to evidence your
consent to the foregoing and fax a copy to the Administrative Agent (c/o Terry
Ronan) at 617-434-3652 by 5:00 p.m., Monday, October 29th.
Thank you for your assistance on such short notice.
FLEET NATIONAL BANK, Administrative Agent
By: /s/ Terrence Ronan
-----------------------------------------
Terrence Ronan, Managing Director
We hereby consent to the foregoing
First Union National Bank
By: /s/ Robert R. Wetteroff
--------------------------------------
Name: Robert R. Wetteroff
Title: Senior Vice President
Bank of America, N.A.
By: /s/ Ronald E. McKaig
--------------------------------------
Name: Ronald E. McKaig
Title: Managing Director
Bank One NA
By: /s/ Charles Kingswell-Smith
--------------------------------------
Name: Charles Kingswell-Smith
Title: First Vice President
Fortis Capital Corp.
By: /s/ Darrell W. Holley
--------------------------------------
Name: Darrell W. Holley
Title: Managing Director
By: /s/ Deirdre Sanborn
--------------------------------------
Name: Deirdre Sanborn
Title: Vice President
U.S. Bank, National Association
By: /s/ Monte E. Deckerd
--------------------------------------
Name: Monte E. Deckerd
Title: Vice President
Bank of Scotland
By: /s/ Joseph Fratus
--------------------------------------
Name: Joseph Fratus
Title: Vice President
The Bank of Nova Scotia
By: /s/ M. D. Smith
--------------------------------------
Name: M. D. Smith
Title: Agent
Wells Fargo Bank (Texas)
By: /s/ John Lane
--------------------------------------
Name: John Lane
Title: Vice President
Toronto Dominion (Texas), Inc.
By: /s/ Jim Bridwell
--------------------------------------
Name: Jim Bridwell
Title: Vice President
Credit Agricole Indosuez
By: /s/ Brian Knezeak
--------------------------------------
Name: Brian Knezeak
Title: FVP, Manager
By: /s/ Michael D. Willis
--------------------------------------
Name: Michael D. Willis
Title: VP, Credit Analysis
Union Bank of California, N.A.
By: /s/ Randall Osterberg
--------------------------------------
Name: Randall Osterberg
Title: Senior Vice President
Southwest Bank of Texas, N.A.
By: /s/ A. Stephen Kennedy
--------------------------------------
Name: A. Stephen Kennedy
Title: Senior Vice President
BNP Paribas
By: /s/ Edward K. Chin
--------------------------------------
Name: Edward K. Chin
Title: Director
By: /s/ Keith Cox
--------------------------------------
Name: Keith Cox
Title: Director
Comerica Bank-Texas
By: /s/ Huma Vadgama
--------------------------------------
Name: Huma Vadgama
Title: Corporate Banking Officer
Octagon Investment Partners IV, Ltd.
By: Octagon Credit Investors, LLC
as collateral manager
By: /s/ Michael B. Nechamkin
--------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
Captiva III Finance Ltd (Acct. 275),
as advised by Pacific Invesment
Management Company, LLC
By: /s/ David Dyer
--------------------------------------
Name: David Dyer
Title: Director
Captiva IV Finance Ltd. (Acct. 275),
as advised by Pacific Investment
Management Company, LLC
By: /s/ David Dyer
--------------------------------------
Name: David Dyer
Title: Director
Royalton Company (Acct 280)
By: Pacific Investment Management
Company, LLC, as its
Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Bedford CDO, Limited (Acct. 1276)
By: Pacific Investment Management
Company, LLC, as its
Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Delano Company (Acct. 274)
By: Pacific Investment Management
Company, LLC, as its
Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Addison CDO, Limited (Acct. 1279)
By: Pacific Investment Management
Company, LLC, as its
Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Jissekikun Funding, Ltd. (Acct 1288)
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Balboa CDO I, Limited
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Sequils-Magnum, Ltd.
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
San Joaquin CDO I Limited
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ Mohan V. Phansalkar
--------------------------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
Highland Loan Funding V Ltd.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Mark Okada
--------------------------------------
Name: Mark Okada, CFV
Title: Executive Vice President
Pilgrim America High Income Investments Inc. Ltd.
By: ING Pilgrim Investments, Inc.
as its investment manager
By: /s/ Charles E. LeMieux
--------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
TCW Select Loan Fund, Limited
By: TCW Advisors, Inc.
as its Collateral Manager
By: /s/ Richard F. Kurth
--------------------------------------
Name: Richard F. Kurth
Title: Vice President
By: /s/ Mark L. Gold
--------------------------------------
Name: Mark L. Gold
Title: Managing Director
Flagship CLO 2001-1
By: Flagship Capital Management, Inc.
By: /s/ James T. Anderson
--------------------------------------
Name: James T. Anderson
Title: Managing Director
Flagship CLO II
By: /s/ James T. Anderson
--------------------------------------
Name: James T. Anderson
Title: Attorney in Fact
ML CLO XII Pilgrim America (Cayman) Ltd.
By: ING Pilgrim Investments, Inc.
as its investment manager
By: /s/ Charles E. LeMieux
--------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
Octagon Investment Partners II, LLC
By: Octagon Credit Investors, LLC
as sub-investment manager
By: /s/ Michael B. Nechamkin
--------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
Pilgrim Prime Rate Trust
By: ING Pilgrim Investments, Inc.
as its investment manager
By: /s/ Charles E. LeMieux
--------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
Pilgrim Senior Income Fund
By: ING Pilgrim Investments, Inc.
as its investment manager
By: /s/ Charles E. LeMieux
--------------------------------------
Name: Charles E. LeMieux, CFA
Title: Vice President
Octagon Investment Partners III, Ltd.
By: Octagon Credit Investors, LLC
as Portfolio Manager
By: /s/ Michael B. Nechamkin
--------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
Siemans Financial Services, Inc.
By: /s/ Frank Amodio
--------------------------------------
Name: Frank Amodio
Title: Vice President-Credit
Guaranty Bank
By: /s/ Jim R. Hamilton
---------------------------------
Name: Jim R. Hamilton
Title: Senior Vice President,
Regional Manager
ML CLO XX Pilgrim America (Cayman) Ltd.
By: ING Pilgrim Investments, LLC
as its investment manager
By: /s/ Charles E. LiMieux
---------------------------------
Name: Charles E. LiMieux, CFA
Title: Vice President
Pilgrim CLO 1999-1 Ltd.
By: ING Pilgrim Investments, LLC
as its investment manager
By: /s/ Charles E. LiMieux
---------------------------------
Name: Charles E. LiMieux, CFA
Title: Vice President
Sequils Pilgrim-1 Ltd.
By: ING Pilgrim Investments, LLC
as its investment manager
By: /s/ Charles E. LiMieux
---------------------------------
Name: Charles E. LiMieux, CFA
Title: Vice President
Maplewood (Cayman) Ltd.
By: Mass Mutual Life Insurance Co., as Investment Manager
By: /s/ Steven J. Katz
---------------------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
Term Loan Lender
Massachusetts Mutual Life Insurance Company
By: /s/ Steven J. Katz
---------------------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
Term Loan Lender
SAAR Holdings CDO Limited
By: Mass Mutual Life Insurance Co., as Collateral Manager
By: /s/ Steven J. Katz
---------------------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
Term Loan Lender
Persens CDO I, Limited
By: Mass Mutual Life Insurance Co., as Portfolio Manager
By: /s/ Steven J. Katz
---------------------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
Term Loan Lender
Somers CDO, Limited
By: Mass Mutual Life Insurance Co., as Collateral Manager
By: /s/ Steven J. Katz
---------------------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
Term Loan Lender
Simsbury CLO, Limited
By: Mass Mutual Life Insurance Co.
as Collateral Manager
By: /s/ Steven J. Katz
--------------------------------------
Name: Steven J. Katz
Title: Second Vice President
Suffield CLO, Limited
By: David L. Babson & Co.
as Collateral Manager
By: /s/ Mary Ann McCarthy
--------------------------------------
Name: Mary Ann McCarthy
Title: Managing Director
Term Loan Lender
Bill & Melinda Gates Foundation
By: David L. Babson & Company Inc.
as Investment Advisers
By: /s/ Mary Ann McCarthy
--------------------------------------
Name: Mary Ann McCarthy
Title: Managing Director
Term Loan Lender
[Letter of Credit and Hedged Inventory Credit Agreement]
PLAINS MARKETING, L.P., Borrower
ALL AMERICAN PIPELINE, L.P., Guarantor
By: Plains Marketing GP Inc., General Partner
By: /s/ Phil Kramer
--------------------------------------
Phil Kramer, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P., Guarantor
By: Plains AAP, L.P., General Partner
By: Plains All American GP LLC, its General Partner
By: /s/ Phil Kramer
--------------------------------------
Phil Kramer, Exec. Vice President
CONSENT AND AGREEMENT
Each of the undersigned 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 May 4, 2001 made by it for the benefit of
Administrative Agent and Lenders, and (iv) expressly acknowledges and agrees
that the undersigned guarantees all indebtedness, liabilities and obligations
arising under or in connection with any and all 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.
PLAINS MARKETING CANADA LLC
By: Plains Marketing, L.P., its sole member
By: Plains Marketing GP Inc.,
its general partner
By: /s/ Phil Kramer
--------------------------------------
Phil Kramer, Exec. Vice President
PMC (NOVA SCOTIA) COMPANY
By: /s/ Phil Kramer
---------------------------------------------
Phil Kramer, Exec. Vice President
PLAINS MARKETING CANADA, L.P.
By: PMC (Nova Scotia) Company,
General Partner
By: /s/ Phil Kramer
---------------------------------------------
Phil Kramer, Exec. Vice President