EXHIBIT 10.38
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[Letter of Credit and Hedged Inventory Facility]
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT [Letter of Credit
and Hedged Inventory Facility] (this "Amendment") dated as of the 31st day of
January, 2002, by and 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 party hereto.
W I T N E S S E T H:
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent and
Lenders entered into that certain Amended and Restated Credit Agreement [Letter
of Credit and Hedged Inventory Facility] dated as of May 4, 2001 (as amended,
supplemented, or restated to the date hereof, the "Original Agreement") for the
purposes and consideration therein expressed, pursuant to which Lenders became
obligated to make and made loans to Borrower as therein provided; and
WHEREAS, Borrower, All American, Plains MLP, Administrative 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 that 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
(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 Fifth Amendment to Amended and Restated Credit
Agreement [Letter of Credit and Hedged Inventory Facility].
"Amendment Documents" means this Amendment.
"Credit Agreement" means the Original Agreement as amended hereby.
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ARTICLE II. -- Amendments
(S) 2.1. Definitions. The definition of "Consolidated Net Worth" set
forth in Section 1.1 of the Original Agreement is hereby amended in its entirety
to read as follows:
"Consolidated Net Worth" means the remainder of all Consolidated
assets, as determined in accordance with GAAP, of Plains MLP and its
Subsidiaries minus the sum of (i) Plains MLP's Consolidated liabilities, as
determined in accordance with GAAP, and (ii) the book value of any equity
interests in any of Plains MLP's Subsidiaries which equity interests are
owned by a Person other than Plains MLP or a Wholly Owned Subsidiary of
Plains MLP. The effect of any increase or decrease of net worth in any
period as a result of items of income or loss not reflected in the
determination of net income but reflected in the determination of
comprehensive income (to the extent provided under GAAP as in effect on the
date hereof) shall be excluded in determining Consolidated Net Worth.
The definition of "Permitted Acquisitions" set forth in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Permitted Acquisitions" means (A) the acquisition of the capital
stock or other equity interest in a Person whose business, assets and
operations consist of Petroleum Products and/or gas marketing, gathering,
transportation, storage, terminaling and pipeline operation; provided, if a
Restricted Person acquires less than all of the capital stock or other
equity interest acquired, such business, assets and operations shall
consist of transportation, storage, terminaling and/or pipeline operations
and associated gathering assets, or (B) the acquisition of all or a portion
of a line of business or the business, assets or operations of a Person
(whether in a single transaction or a series of related transactions)
consisting of Petroleum Products and/or gas marketing, gathering,
transportation, storage, terminaling and pipeline operation; provided, if a
Restricted Person acquires less than all of the ownership interest of the
business, assets or operations acquired, such business, assets and
operations shall consist of transportation, storage, terminaling and/or
pipeline operations and associated gathering assets; provided, further, in
each case under clauses (A) and (B) above (i) prior to and after giving
effect to such acquisition no Default or Event of Default shall have
occurred and be continuing; and (ii) all representations and warranties
shall be true and correct as if restated immediately following the
consummation of such acquisition, except to the extent that any 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.
The definition of "Permitted Investments" set forth in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Permitted Investments" means:
(a) Cash Equivalents,
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(b) Investments described in the Disclosure Schedule,
(c) Investments by Plains MLP or any of its Subsidiaries in (1) any
Wholly Owned Subsidiary of Plains MLP which is (or substantially
contemporaneously with such Investment will become) Borrower or a
Guarantor, or (2) any business, asset or operation which is (or
contemporaneously with such Investment becomes) wholly-owned by Plains MLP
or any Wholly Owned Subsidiary of Plains MLP which is (or substantially
contemporaneously with such Investment will become) Borrower or a
Guarantor,
(d) Investments in publicly traded units of master limited
partnerships whose dividends are "qualifying income" as such term is
defined in Section 7704 of the Code (provided, the amount of any such
Investments under this clause (d) minus any amounts received on such
Investments (excluding dividends thereon) shall not at any time exceed the
Dollar Equivalent of $5,000,000),
(e) Permitted Acquisitions,
(f) Investments by Plains MLP or any of its Subsidiaries in (i) any
Person owning transportation, terminaling, storage and/or pipeline assets
and associated gathering assets in which Plains MLP or any Wholly Owned
Subsidiary of Plains MLP owns, directly or indirectly, less than all of the
capital stock or other equity interest, or (ii) transportation,
terminaling, storage and/or pipeline assets and associated gathering assets
in which Plains MLP or any Wholly Owned Subsidiary of Plains MLP owns,
directly or indirectly, less than all of the ownership interest therein,
such Investments under clauses (i) and (ii) above in an aggregate amount
not to exceed at any one time outstanding (A) the Dollar Equivalent of
$35,000,000 minus (B) any outstanding Indebtedness under Section
7.1(f)(ii),
(g) subject to Section 7.18(d), Investments directly or indirectly by
Restricted Persons in Unrestricted Subsidiaries (i) consisting of Qualified
Equity Proceeds, and (ii) Investments other than Qualified Equity Proceeds
in an aggregate amount not to exceed, at any one time outstanding, the
Dollar Equivalent of $100,000,000; for calculation purposes hereof: (1) any
return on investment from any Unrestricted Subsidiary shall reduce the
aggregate outstanding Investments subject to the limitation set forth in
clause (ii) by an amount equal to the Non-Equity Investment to Total
Investment Ratio times such investment return (e.g., if an Unrestricted
Subsidiary is capitalized with $100,000,000, $40,000,000 of which is
Qualified Equity Proceeds and $60,000,000 of which is subject to the
limitation set forth in clause (ii), and $10,000,000 is returned by such
Unrestricted Subsidiary, the $60,000,000 subject to clause (ii) would be
reduced by 6/10ths or $6,000,000 of such return); (2) in the event any
Unrestricted Subsidiary is designated a Restricted Person pursuant to
Section 7.18, executes and delivers Security Documents pursuant to Section
6.14 and becomes a Guarantor pursuant to Section 6.17, the aggregate
outstanding Investments subject to the limitation set forth in clause (ii)
shall be reduced by the lesser of (i) Investments in such redesignated
Subsidiary not constituting Qualified Equity Proceeds and (ii) the Non-
Equity Investment to Total Investment Ratio times the fair market value of
such redesignated Subsidiary as of the
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date of such designation as a Restricted Person, as reasonably determined
by Borrower; as used herein, "Qualified Equity Proceeds" means proceeds of
private or public offerings of equity securities by Restricted Persons
after January 31, 2002 that within three months after the receipt thereof
are (1) contributed as capital to one or more specified Unrestricted
Subsidiaries, or (2) expressly designated as funds to be contributed as
capital to one or more specified Unrestricted Subsidiaries, and are
contributed pursuant to such designation within six months after such
designation, and "Non-Equity Investment to Total Investment Ratio" means
with respect to any Unrestricted Subsidiary, the ratio of (I) Investments
in such Unrestricted Subsidiary not constituting Qualified Equity Proceeds
to (II) all Investments in such Unrestricted Subsidiary, and
(h) other Investments, excluding Investments in Unrestricted
Subsidiaries, such other Investments not to exceed in the aggregate in
respect of all Restricted Persons the Dollar Equivalent of $10,000,000.
The definition of "Restricted Person" set forth in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Restricted Person" means any of Plains MLP and each Subsidiary of
Plains MLP, including but not limited to Borrower, All American, and each
Subsidiary of Borrower and All American, but excluding, for the avoidance
of doubt, Unrestricted Subsidiaries.
The following definition of "Restriction Exception" is hereby added to
Section 1.1 of the Original Agreement in appropriate alphabetical order:
"Restriction Exception" means (i) any instrument governing
Indebtedness or equity interests, or any other agreement relating to any
property or assets, of a Person whose capital stock or other equity
interests are partially acquired by a Restricted Person pursuant to a
Permitted Acquisition, as such instrument or agreement is in effect at the
time of such acquisition (except with respect to Indebtedness incurred in
connection with, or in contemplation of, such acquisition), which is not
applicable to any Restricted Person, or the property or assets of any
Restricted Person, other than the partially-acquired Person, or the
property or assets of such partially-acquired Person or such partially-
acquired Person's Subsidiaries; provided that in the case of Indebtedness,
such Indebtedness is permitted hereunder, or (ii) provisions with respect
to the disposition or distribution of assets in joint venture agreements or
other similar agreements entered into in the ordinary course of business.
The definition of "Subsidiary" set forth in Section 1.1 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, limited liability company, joint venture, or
other business or corporate entity, enterprise or organization which is
directly or indirectly (through one or more intermediaries) controlled or
owned more than fifty percent by such Person; provided,
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however, that no Unrestricted Subsidiary shall be deemed a "Subsidiary" of
Plains MLP or any Subsidiary of Plains MLP for purposes of any Loan
Document except as provided in Section 7.18.
The following definition of "Unrestricted Subsidiary" is hereby added to
Section 1.1 of the Original Agreement in appropriate alphabetical order:
"Unrestricted Subsidiary" shall have the meaning given it in Section
7.18.
(S) 2.2. Agreement to Deliver Security Documents. Section 6.14 of the
Original Agreement is hereby amended in its entirety to read as follows:
Section 6.14. Agreement to Deliver Security Documents. Restricted
Persons will deliver, and will cause each Person, other than Unrestricted
Subsidiaries, in which it owns any capital stock or other equity interest
(other than interests described in clause (d) of the definition of
"Permitted Investments") to deliver, to further secure the Obligations
whenever requested by Administrative Agent in its sole and absolute
discretion, deeds of trust, mortgages, chattel mortgages, security
agreements, financing statements and other Security Documents in form and
substance satisfactory to Administrative Agent for the purpose of granting,
confirming, and perfecting first and prior liens or security interests in
any real or personal property now owned or hereafter acquired by any
Restricted Person; provided, with respect to any such property for which
the consent or approval of third parties is required for the delivery of
such Security Documents, Restricted Persons shall not be required to
deliver, or to cause such Person to deliver, such Security Documents with
respect to such property, but shall use their commercially reasonable best
efforts, as determined by Administrative Agent, to deliver, or to cause
such Person to deliver, such Security Documents with respect to such
property. Without limiting the foregoing, each Restricted Person shall be
required to grant a Lien in favor of Administrative Agent for the benefit
of Lenders encumbering such Restricted Person's ownership interest in any
Unrestricted Subsidiary; provided, no Security Document granting any such
Lien on such ownership interest in such Unrestricted Subsidiary shall
restrict or limit the ownership or operation of such Unrestricted
Subsidiary except as otherwise restricted or limited herein.
(S) 2.3. Guaranties of Subsidiaries. The first sentence of Section 6.17
of the Original Agreement is hereby amended in its entirety to read as follows:
Each Subsidiary of Plains MLP, and any other Person, other than
Unrestricted Subsidiaries, in which any Subsidiary of Plains MLP owns any
capital stock or other equity interest (other than interests described in
clause (d) of the definition of "Permitted Investments"), now existing or
created, acquired or coming into existence after the date hereof shall,
promptly upon request by Administrative Agent, execute and deliver to
Administrative Agent an absolute and unconditional guaranty of the timely
repayment of the Obligations and the due and punctual performance of the
obligations of Borrower hereunder (in each case for which such Subsidiary
is not a borrower, account party or similar primary and direct obligor),
which guaranty shall be satisfactory to Administrative Agent in form and
substance; provided, with respect to any such Subsidiary or other Person
that is not a Wholly Owned Subsidiary of Plains MLP, for which consent or
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approval of third parties is required for the delivery of such guaranty,
such Subsidiary or such other Person shall not be required to deliver such
guaranty, but shall use its commercially reasonable best efforts, as
determined by Administrative Agent, to deliver such guaranty.
Notwithstanding any provision contained herein, in no event shall any
Unrestricted Subsidiary be required to execute and deliver any guaranty
for, or in respect of, the Obligations, or any part thereof.
(S) 2.4. Limitation on Indebtedness. Section 7.1(f) of the Original
Agreement is hereby amended in its entirety to read as follows:
(f) guaranties by Plains MLP, Borrower or any Guarantor of trade
payables incurred and paid in the ordinary course of business on ordinary
trade terms by (A) any Restricted Person, or (B) any other Person in which
Plains MLP or any Wholly Owned Subsidiary of Plains MLP owns less than all
of such Person's capital stock or other equity interest; provided, that the
outstanding trade payables amount guaranteed at any time under this clause
(B) shall not exceed (1) $50,000,000 minus (2) any outstanding Investments
under clause (f) of the definition of Permitted Investments.
(S) 2.5. Limitation on Liens. The reference to "Section 7.1(g)" set forth
in Section 7.2(i) of the Original Agreement is hereby amended to refer instead
to "Section 7.1(h)".
(S) 2.6. Limitations on Mergers; Issuances of Securities. The second,
third and fourth sentences of Section 7.4 are hereby amended in their entirety
to read as follows:
Any Person, other than Borrower, that is a Subsidiary of a Restricted
Person may, however, be merged into or consolidated with (i) another
Subsidiary of such Restricted Person, so long as (A) neither is a
Guarantor, or (B) a Guarantor is the surviving business entity, (ii) such
Restricted Person, so long as such Restricted Person is the surviving
business entity, or (iii) any other Person pursuant or incidental to, or in
connection with, any contemporaneous or substantially contemporaneous
Permitted Acquisition, provided that such merging or consolidating
Subsidiary (1) is not Borrower, Guarantor or a Wholly Owned Subsidiary of
Plains MLP, other than a Wholly Owned Subsidiary that was formed, acquired
or created solely for purposes of such acquisition or otherwise conducted
no operations and owned no assets, other than of an inconsequential amount
and (2) does not own any Collateral. Plains MLP will not issue any
securities other than (i) limited partnership interests and any options or
warrants giving the holders thereof only the right to acquire such
interests, (ii) general partnership interests to General Partner, and (iii)
debt securities permitted by Section 7.1(g). No Subsidiary of Plains MLP
will issue any additional shares of its capital stock, partnership
interests or other securities or any options, warrants or other rights to
acquire such additional shares, partnership interests or other securities,
except a Subsidiary of a Restricted Person may issue additional shares,
partnership interests or other securities (i) to Persons so long as such
Restricted Person's and Plains MLP's aggregate ownership in such issuing
Subsidiary is not diminished after giving effect thereto, or (ii) to any
other Person pursuant or incidental to, or in connection with, any
contemporaneous or substantially contemporaneous Permitted Acquisition,
provided that such issuing Subsidiary (1) is not
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Borrower, Guarantor or a Wholly Owned Subsidiary of Plains MLP, other than
a Wholly Owned Subsidiary that was formed, acquired or created solely for
purposes of such acquisition or otherwise conducted no operations and owned
no assets, other than of an inconsequential amount and (2) does not own any
Collateral.
The fifth sentence of Section 7.4 is hereby deleted in its entirety.
(S) 2.7. Limitation on Sales of Property. Section 7.5 of the Original
Agreement is hereby amended by deleting "and" at the end of clause (c), adding
an amended clause (d) as follows:
(d) in exchange for other property; provided that (i) such exchange is
for fair consideration, (ii) the property to be acquired in such exchange
constitutes a Permitted Acquisition, (iii) the fair market value of such
property being exchanged is not in the aggregate in excess of the Dollar
Equivalent of $25,000,000 in any Fiscal Year, as reasonably determined by
Borrower (any such determination in excess of $10,000,000 being determined
in good faith by certified resolution of the board of directors of the
corporate general partner of Borrower and subject to, at Administrative
Agent's reasonable request, confirmation by appraisal), and (iv) such
exchange will not materially impair or diminish the value of the Collateral
or any Restricted Person's financial condition, business or operations; and
and redesignating existing clause "(d)" as clause "(e)".
The first sentence following such new clause (d) and redesignated clause
(e) of Section 7.5 is hereby amended in its entirety to read as follows:
No Restricted Person will sell, transfer or otherwise dispose of capital
stock of or interest in any of its Subsidiaries except (i) to Plains MLP or
a Wholly Owned Subsidiary of Plains MLP or (ii) to any other Person
pursuant or incidental to, or in connection with, any contemporaneous or
substantially contemporaneous Permitted Acquisition, provided that such
Subsidiary whose capital stock or interests are being transferred (1) is
not Borrower, Guarantor or a Wholly Owned Subsidiary of Plains MLP, other
than a Wholly Owned Subsidiary that was formed, acquired or created solely
for purposes of such acquisition or otherwise conducted no operations and
owned no assets, other than of an inconsequential amount and (2) does not
own any Collateral; provided, in the event any limited partner interests
issued by Plains Marketing Canada, L.P. to CanPet Energy Group (USA), Inc.
or CanPet Energy Group Inc. pursuant to Section 7.4 are exchanged for units
issued by Plains MLP, Lenders hereby consent to the contribution by Plains
MLP to Borrower of any and all such partnership interests.
The reference to "clause (a) or (c)" in the last sentence of Section 7.5 is
hereby amended to refer instead to "clauses (a), (c) or (d)".
(S) 2.8. Limitation on Dividends and Redemptions. The first sentence of
Section 7.6 of the Original Agreement is hereby amended in its entirety to read
as follows:
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Section 7.6 Limitation on Dividends and Redemptions. No Restricted
Person will declare or pay any dividends on, or make any other distribution
in respect of, any class of its capital stock or any partnership, limited
liability company or other interest in it, nor will any Restricted Person
directly or indirectly purchase, redeem, acquire or retire (or make any
capital contribution to purchase, redeem, acquire or retire) any shares of
the capital stock of or partnership or limited liability company interests
in any Restricted Person (whether such interests are now or hereafter
issued, outstanding or created), or cause or permit any reduction or
retirement of the capital stock of any Restricted Person, while any Loan or
any Commitment is outstanding.
(S) 2.9. Prohibited Contracts. The reference to "as described in the
Disclosure Schedule" set forth in the first sentence of Section 7.10 of the
Original Agreement is hereby amended to refer instead to "as described in the
Disclosure Schedule or pursuant to a Restriction Exception, the substance of
which, in detail satisfactory to Administrative Agent, is promptly reported to
Administrative Agent".
(S) 2.10. Debt Coverage Ratio. Section 7.12 of the Original Agreement is
hereby amended in its entirety to read as follows:
Section 7.12 Debt Coverage Ratio. (a) At the end of any Fiscal
Quarter, (b) on any date on which General Partner declares a distribution
permitted under Section 7.6 and (c) on the date of any Permitted
Acquisition, both immediately prior to and after giving effect to the
consummation thereof, the Debt Coverage Ratio will not be greater than 4.00
to 1.0. As used herein, "Debt Coverage Ratio" means the ratio of (a)
Consolidated Funded Indebtedness to (b) Consolidated EBITDA for the four
Fiscal Quarter period (or other period specified below) most recently ended
prior to the date of determination for which financial statements
contemplated by Section 6.2(a) or (b) are available to Borrower; provided,
for purposes of this Section 7.12, if, since the beginning of the four
Fiscal Quarter period ending on the date for which Consolidated EBITDA is
determined, any Restricted Person shall have made any asset disposition or
acquisition, shall have consolidated or merged with or into any Person
(other than another Restricted Person), or shall have made any disposition
or acquisition of a Restricted Person or disposition or acquisition of any
partial ownership interest in any other Person, Consolidated EBITDA shall
be calculated giving pro forma effect thereto as if the disposition,
acquisition, consolidation or merger had occurred on the first day of such
period; provided, with respect to any Person not constituting a Subsidiary
of Plains MLP, such pro forma calculation of Consolidated EBITDA, with
respect to any such Person, shall be limited to not more than 75% of (i)
such Restricted Person's ownership interest in such Person times (ii) the
difference of such Person's (A) Consolidated EBITDA minus (B) Interest
Expense and capital expenditures. Such pro forma effect shall include
adjustments with respect to management fees previously distributed with
respect to the assets subject to the CanPet Acquisition and the acquisition
of the remaining 50% of the Manito Pipeline in mid calendar year 2000, and
shall otherwise be determined (i) in good faith by the chief financial
officer of Borrower, and (ii) without giving effect to any anticipated or
proposed change in operations, revenues, expenses or other items included
in the computation of Consolidated EBITDA, except with the consent of
Majority Lenders.
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(S) 2.11. Unrestricted Subsidiaries. Article VII of the Original
Agreement is hereby amended by adding a new Section 7.18 at the end thereof, to
read as follows:
Section 7.18 Unrestricted Subsidiaries. Plains MLP or any Wholly
Owned Subsidiary of Plains MLP may designate one or more direct
Subsidiaries that are not Borrower or Guarantors (each such Subsidiary, and
each of its Subsidiaries, each an "Unrestricted Subsidiary"), which
Unrestricted Subsidiaries shall be subject to the following:
(a) No Unrestricted Subsidiary shall be deemed to be a "Restricted Person"
or a "Subsidiary" of Plains MLP for purposes of this Agreement or any
other Loan Document, and no Unrestricted Subsidiary shall be subject
to or included within the scope of any provision herein or in any
other Loan Document, including without limitation any representation,
warranty, covenant or Event of Default herein or in any other Loan
Document, except as set forth in this Section 7.18.
(b) No Restricted Person shall guarantee or otherwise become liable in
respect of any Liability or other obligation of, grant any Lien on any
of its property to secure any Liability or other obligation of, make
any Investment in (except as described in clause (g) of the definition
of Permitted Investments), or provide any other form of credit
support to, any Unrestricted Subsidiary, and no Restricted Person
shall enter into any contract or agreement with any Unrestricted
Subsidiary, except in the course of ordinary business on terms no less
favorable to such Restricted Person, as applicable, than could be
obtained in a comparable arm's length transaction with a non-Affiliate
of such Restricted Person.
(c) Borrower shall at all times maintain, as between Restricted Persons
and Unrestricted Subsidiaries, the separate existence of each
Unrestricted Subsidiary.
(d) No Restricted Person shall make any Investment in any Unrestricted
Subsidiary pursuant to clause(g) of the definition of "Permitted
Investment" except in connection with the capitalization of an
Unrestricted Subsidiary to consummate a proposed acquisition,
disclosed to Administrative Agent in writing, of (1) the acquisition
of the capital stock or other equity interest in a Person whose
business, assets and operations consist of Petroleum Products and/or
gas marketing, gathering, transportation, storage, terminaling and
pipeline operation; provided, if a Restricted Person acquires less
than all of the capital stock or other equity interest acquired, such
business, assets and operations shall consist of transportation,
storage, terminaling and/or pipeline operations and associated
gathering assets, or (2) the acquisition of all or a portion of a line
of business or the business, assets or operations of a Person (whether
in a single transaction or a series of related transactions)
consisting of Petroleum Products and/or gas marketing, gathering,
transportation, storage, terminaling and pipeline operation; provided,
if a Restricted Person acquires less than all of the ownership
interest of the business, assets or operations acquired, such
business, assets and operations
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shall consist of transportation, storage, terminaling and/or pipeline
operations and associated gathering assets; provided, further, the
aggregate amount of any such Permitted Investments in such
Unrestricted Subsidiary in excess of the purchase price and associated
acquisition costs relating to such acquisition shall, promptly
following the consummation of such acquisition, be distributed back to
such investing Restricted Person. In the event such Unrestricted
Subsidiary shall fail to timely consummate such specified acquisition
or such specified acquisition shall otherwise be abandoned, such
Unrestricted Subsidiary shall be deemed to be a "Subsidiary" of Plains
MLP for purposes of this Agreement and shall be subject to the terms
and conditions hereof.
(e) Restricted Persons shall notify each Lender Party, not later than five
(5) Business Days after any executive officer of Restricted Persons
has knowledge of, under any Environmental Law, any claim of the Dollar
Equivalent of $1,000,000 or more, any notice of potential liability
which might be reasonably likely to exceed such amount, or any other
material adverse claim thereunder asserted against any Unrestricted
Subsidiary or with respect to any Unrestricted Subsidiary's
properties, stating that such notice is being given pursuant to this
Section 7.18.
The board of directors of the corporate general partner of the Borrower may
designate any Unrestricted Subsidiary to become a Restricted Person if a
Default or Event of Default is not continuing, such designation would not
result in a Default or an Event of Default, and immediately thereafter such
Subsidiary has no outstanding Indebtedness. Immediately thereafter,
Borrower shall promptly notify the Administrative Agent of such designation
and provide to it an officer's certificate that such designation was made
in compliance with this Section 7.18.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of the
date first written above, when and only when:
(i) Administrative Agent shall have received, at Administrative
Agent's office (A) a counterpart of this Amendment executed and delivered
by Borrower, Plains MLP, All American and Majority Lenders, and (B) a
contemporaneous amendment to the Revolver Agreement, amending various
provisions therein consistent with the amendments set forth herein, in form
and substance acceptable to Administrative Agent, executed and delivered by
such Persons so as to make such amendment effective,
(ii) in consideration hereof Borrower shall have paid to
Administrative Agent for the account of each Lender executing and
delivering this Amendment an amendment fee in immediately available funds
equal to one-twentieth of one percent (0.05%) of each such Lender's
Percentage Share of the Maximum Facility Amount; and
(iii) Administrative Agent shall have additionally received all of the
following documents, each document (unless otherwise indicated) being dated
the date of receipt
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thereof by Administrative Agent, duly authorized, executed and delivered,
and in form and substance satisfactory to Administrative Agent:
(A) Officer's Certificate. A certificate of a duly authorized
officer of General Partner, 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, and
(B) Supporting Documents. Such supporting documents as
Administrative Agent may reasonably request.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrower. In
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrower represent and warrant to Administrative Agent and each
Lender that:
(a) The representations and warranties contained in Article V 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 and
warranty was made as of a specific date.
(b) Each Restricted Person is duly authorized to execute and deliver
this Amendment and each other Amendment Document, to the extent a party
thereto, and each Borrower is and will continue to be duly authorized to
borrow and perform its obligations under the Credit Agreement. Each
Restricted Person has duly taken all action necessary to authorize the
execution and delivery of this Amendment and each other Amendment Document,
to the extent a party thereto, and to authorize the performance of their
respective obligations hereunder.
(c) The execution and delivery by each Restricted Person of this
Amendment and each other Amendment Document, to the extent a party thereto,
the performance by each Restricted Person of its 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 any Law or of the organizational documents of any Restricted
Person, or of any material agreement, judgment, license, order or permit
applicable to or binding upon any Restricted Person, or result in the
creation of any Lien upon any assets or properties of any Restricted
Person, except in favor of Administrative Agent for the benefit of Lenders
and other Permitted Liens. Except for those which have been duly obtained,
no consent, approval, authorization or order of any Tribunal or third party
is required in connection with the execution and delivery by any Restricted
Person of this Amendment or any other Amendment Document, or to consummate
the transactions contemplated hereby and thereby.
(d) When duly executed and delivered, each of this Amendment and each
other Amendment Document, and each of the Loan Documents, as amended hereby
and thereby, will be a legal and binding instrument and agreement of each
Restricted Person to the extent a party thereto, enforceable in accordance
with its terms, (subject, as to
11
enforcement of remedies, to applicable bankruptcy, insolvency and similar
laws applicable to creditors' rights generally).
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents
(including but not limited to each Guaranty), as they may be amended or affected
by this Amendment or any other Amendment Document, are hereby ratified and
confirmed in all respects by each Restricted Person to the extent a party
thereto. 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 and the other Amendment Documents shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of Administrative 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.
(S) 5.2. Ratification of Security Documents. Restricted Persons,
Administrative Agent, and Lenders each acknowledge and agree that any and all
indebtedness, liabilities or obligations arising under or in connection with the
LC Obligations or the Notes are Obligations and are secured indebtedness under,
are guarantied by, and are secured by, each and every Security Document to which
any Restricted Person is a party. Each Restricted Person hereby re-pledges, re-
grants and re-assigns a security interest in and lien on every asset of the such
Restricted Person described as Collateral in any Security Document and re-
guarantees all Obligations under the Credit Agreement.
(S) 5.3. Ratification of Intercreditor Agreement. Each Lender hereby
acknowledges and confirms that all Obligations under the Credit Agreement, as
amended hereby, and the "Obligations" under the Marketing Credit Agreement, as
amended on the date hereof, shall be and shall remain subject to the terms and
entitled to the benefits of the Intercreditor Agreement.
(S) 5.4. Survival of Agreements. All representations, warranties,
covenants and agreements of the Restricted Persons 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 under the Credit Agreement are paid in
full. All statements and agreements contained in any certificate or instrument
delivered by any Restricted Person hereunder or under the Credit Agreement to
Administrative Agent or any Lender shall be deemed to constitute representations
and warranties by, or agreements and covenants of, such Restricted Person under
this Amendment and under the Credit Agreement.
(S) 5.5. Loan Documents. This Amendment and each other Amendment Document
is a Loan Document, and all provisions in the Credit Agreement pertaining to
Loan Documents apply hereto.
(S) 5.6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
12
YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA IN ALL RESPECTS,
INCLUDING CONSTRUCTION, VALIDITY AND PERFORMANCE.
(S) 5.7. 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.
BORROWER: PLAINS MARKETING, L.P.
By: Plains Marketing GP Inc., General Partner
By: /s/ Phil Kramer
-------------------------------------
Phil Kramer, Exec. Vice President
GUARANTORS: ALL AMERICAN PIPELINE, L.P.
By: Plains Marketing GP Inc., General Partner
By: /s/ Phil Kramer
-------------------------------------
Phil Kramer, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: Plains AAP, L.P., General Partner
By: Plains All American LLC, General Partner
By: /s/ Phil Kramer
-------------------------------------
Phil Kramer, Exec. Vice President
14
LENDER PARTIES: FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and Lender
By: /s/ Terrence Ronan
-------------------------------------
Terrence Ronan, Managing Director
FIRST UNION NATIONAL BANK, Lender
By: /s/ Robert R. Wetteroff
-------------------------------------
Robert R. Wetteroff, Sr. Vice Pres.
BANK OF AMERICA, N.A., Lender
By:
-------------------------------------
Name:
Title:
BANK ONE, NA, Lender
By:
-------------------------------------
Name:
Title:
FORTIS CAPITAL CORP., Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, Lender
By:
-------------------------------------
Name:
Title:
BANK OF SCOTLAND, Lender
By:
-------------------------------------
Name:
Title:
15
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By:
-------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, Lender
By:
-------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ, Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC., Lender
By:
-------------------------------------
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., Lender
By:
-------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., Lender
By:
-------------------------------------
Name:
Title:
16
COMERICA BANK-TEXAS, Lender
By:
-------------------------------------
Name:
Title:
BNP PARIBAS, Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
GUARANTY BANK, Lender
By:
-------------------------------------
Name:
Title:
SIEMENS FINANCIAL SERVICES INC., Lender
By:
-------------------------------------
Name:
Title:
17
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
18