EXHIBIT 10.39
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[Revolving Credit Facility]
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[Revolving Credit Facility] (this "Amendment") dated as of the 31st day of
January, 2002, by and among PLAINS MARKETING, L.P. ("US Borrower"), ALL AMERICAN
PIPELINE, L.P. and PLAINS ALL AMERICAN PIPELINE, L.P., as guarantors, FLEET
NATIONAL BANK, as Administrative Agent, THE TORONTO-DOMINION BANK, as Canadian
Agent, PMC (NOVA SCOTIA) COMPANY ("Term Borrower"), PLAINS MARKETING CANADA,
L.P. ("Canadian Revolver Borrower"), and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, US Borrower, All American, Plains MLP, Administrative Agent,
Canadian Agent, Term Borrower, Canadian Revolver Borrower and Lenders entered
into that certain Amended and Restated Credit Agreement [Revolving Credit
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 US Borrower, Term Borrower and Canadian Revolver Borrower as therein
provided; and
WHEREAS, US Borrower, All American, Plains MLP, Administrative Agent,
Canadian Agent, Term Borrower, Canadian Revolver Borrower 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 US Borrower,
Term Borrower and Canadian Revolver 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
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(S) 1.1. Terms Defined in the Original Agreement. Unless the context
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otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires,
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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
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Restated Credit Agreement [Revolving Credit Facility].
"Amendment Documents" means this Amendment.
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"Credit Agreement" means the Original Agreement as amended
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hereby.
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ARTICLE II. -- Amendments
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(S) 2.1. Definitions. The definition of "Consolidated Net Worth" set
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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
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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
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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
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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,
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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)
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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:
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(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) a 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) a 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
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Investments under this clause (d) minus any amounts received on such
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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
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7.1(f)(ii),
(g) subject to Section 7.17(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
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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 7.17, 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
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Investment Ratio times the fair market value of such redesignated
Subsidiary as of the date of such designation as a Restricted Person, as
reasonably determined by US Borrower; as used herein, "Qualified Equity
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Proceeds" means proceeds of private or public offerings of equity
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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
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Investment Ratio" means with respect to any Unrestricted Subsidiary, the
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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
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Plains MLP, including but not limited to US Borrower, All American, Term
Borrower, Canadian Revolver Borrower and each Subsidiary of US Borrower,
All American, Term Borrower, and Canadian Revolver Borrower, 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
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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,
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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,
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association, partnership, limited liability company, joint venture, or
other business or corporate entity,
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enterprise or organization which is directly or indirectly (through one or
more intermediaries) controlled or owned more than fifty percent by such
Person; provided, however, that no Unrestricted Subsidiary shall be deemed
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a "Subsidiary" of Plains MLP or any Subsidiary of Plains MLP for purposes
of any Loan Document except as provided in Section 7.17.
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
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Section 7.17.
(S) 2.2. Agreement to Deliver Security Documents. Section 6.14 of the
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Original Agreement is hereby amended in its entirety to read as follows:
Section 6.14. Agreement to Deliver Security Documents.
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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
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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
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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
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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 US Borrower, Term Borrower, and Canadian Revolver Borrower
hereunder (in each case for which such
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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
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Person that is not a Wholly Owned Subsidiary of Plains MLP, for which
consent or 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
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Agreement is hereby amended in its entirety to read as follows:
(f) guaranties by Plains MLP, any Borrower or any Guarantor of
trade payables incurred and paid in the ordinary course of business on
ordinary trade terms by (i) any Restricted Person, or (ii) 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,
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that the outstanding trade payables amount guaranteed at any time under
this clause (ii) shall not exceed (A) $50,000,000 minus (B) any outstanding
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Investments under clause (f) of the definition of Permitted Investments.
(S) 2.5. Limitation on Liens. The reference to "Section 7.1(g)" set
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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,
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third and fourth sentences of Section 7.4 are hereby amended in their entirety
to read as follows:
Any Person, other than US Borrower, Term Borrower, or Canadian Revolver
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 a
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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. 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
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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
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Subsidiary (1) is not a 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
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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
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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 US 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 US 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
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Subsidiary whose capital stock or interests are being transferred (1) is
not a 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
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issued by Canadian Revolver Borrower 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 US 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)".
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(S) 2.8. Limitation on Dividends and Redemptions. The first sentence of
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Section 7.6 of the Original Agreement is hereby amended in its entirety to read
as follows :
Section 7.6 Limitation on Dividends and Redemptions. No
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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 US Commitment or any Canadian Commitment is
outstanding.
(S) 2.9. Prohibited Contracts. The reference to "as described in the
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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
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hereby amended in its entirety to read as follows:
Section 7.12 Debt Coverage Ratio. (a) At the end of any Fiscal
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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
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(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
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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
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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
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Person's (A) Consolidated EBITDA minus (B) Interest Expense and capital
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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
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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.
(S) 2.11. Unrestricted Subsidiaries. Article VII of the Original
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Agreement is hereby amended by adding a new Section 7.17 at the end thereof, to
read as follows:
Section 7.17 Unrestricted Subsidiaries. Plains MLP or any
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Wholly Owned Subsidiary of Plains MLP may designate one or more direct
Subsidiaries that are not Borrowers or Guarantors (each such Subsidiary,
and each of its Subsidiaries, each an "Unrestricted Subsidiary"), which
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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 7.17.
(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) Borrowers 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
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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;
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provided, if a Restricted Person acquires less than all of the
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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, the aggregate
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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 7.17.
The board of directors of the corporate general partner of the US 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, US
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 7.17.
ARTICLE III. -- Conditions of Effectiveness
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(S) 3.1. Effective Date. This Amendment shall become effective as of the
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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 US Borrower, Term Borrower, Canadian Revolver Borrower, Plains MLP, All
American and Majority Lenders, and consented to by each Guarantor, (B) a
contemporaneous amendment to the Marketing Credit 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) (A) In consideration hereof, US 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
Commitment, and (B) US Borrower shall have paid all
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other fees required to be paid to Administrative Agent or any Lender
pursuant to any Loan Documents, including fees and expenses of Thompson &
Knight LLP, counsel to Administrative Agent; and
(iii) Administrative Agent shall have additionally received all of the
following documents, each document (unless otherwise indicated) being dated
the date of receipt 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 Borrowers. In
----------------------------------------------------------
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrowers 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 or Canadian 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
11
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 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, Canadian 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, Canadian 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.
12
(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 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.
13
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
US 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
CANADIAN REVOLVER
BORROWER: PLAINS MARKETING CANADA, L.P.,
By: PMC (Nova Scotia) Company, General Partner
By: /s/ Phil Kramer
---------------------------------------------------
Phil Kramer, Exec. Vice Pres.
TERM BORROWER: PMC (NOVA SCOTIA) COMPANY
By: /s/ Phil Kramer
---------------------------------------------------
Phil Kramer, Exec. Vice Pres.
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:
HELLER FINANCIAL, INC., Lender
By: ______________________________________________
Name:
Title:
17
THE TORONTO-DOMINION BANK,
Canadian Administration Agent
By:_____________________________________________
Name:
Title:
THE TORONTO-DOMINION BANK,
Canadian Revolver Lender
By:_____________________________________________
Name:
Title:
BNP PARIBAS (CANADA), Canadian Revolver Lender
By:_____________________________________________
Name:
Title:
By:_____________________________________________
Name:
Title:
HELLER FINANCIAL CANADA, LTD.,
Canadian Revolver Lender
By:_____________________________________________
Name:
Title:
18
PILGRIM PRIME RATE TRUST
PILGRIM SENIOR INCOME FUND
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
PILGRIM CLO 1999 - 1 LTD.
SEQUILS - PILGRIM I, LTD.
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD., each a Lender
By: ING Pilgrim Investments, LLC,
as its investment manager
By:_____________________________________________
Name:
Title:
MORGAN STANLEY PRIME INCOME TRUST, Lender
By:_____________________________________________
Name:
Title:
FLAGSHIP CLO 2001-1
FLAGSHIP CLO II, each a Lender
By: Flagship Capital Management, Inc.
By:_____________________________________________
Title:
ALLSTATE LIFE INSURANCE COMPANY
AIMCO CDO SERIES 2000-A
AIMCO CLO SERIES 2001-A, each a Lender
By:_____________________________________________
Name:
By:_____________________________________________
Name:
Its Authorized Signatories
19
SWISS LIFE US RAINBOW LIMITED THE ING
INCOME HOLDINGS FUND, LTD.
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
NEMEAN CLO, LTD., each a Lender
By: ING Capital Advisors LLC,
as Investment Manager
By:_____________________________________________
Title:
ARCHIMEDES FUNDING III, LTD.
SEQUILS-ING-I (HBDGM), LTD.
ORYX CLO, LTD., each a Lender
By: ING Capital Advisors LLC,
as Collateral Manager
By:_____________________________________________
Title:
BALANCED HIGH YIELD FUND II, LTD., Lender
By: ING Capital Advisors LLC,
as Asset Manager
By:_____________________________________________
Title:
FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR
FLOATING RATE HIGH INCOME FUND, a Lender
By:_____________________________________________
Title:
20
TRYON CLO LTD. 2000-I
ELC (CAYMAN) LTD. 1999-II
ELC (CAYMAN) LTD. 1999-III
ELC (CAYMAN) LTD. 2000-I
APEX (IDM) CDO I, LTD., each a Lender
By:____________________________________________________
Title:
MONUMENT CAPITAL LTD., Lender
By: Alliance Capital Management, L.P.,
as Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By:____________________________________________________
Name:
Title:
NEW ALLIANCE GLOBAL CDO LIMITED, Lender
By: Alliance Capital Management, L.P., as Sub-advisor
By: Alliance Capital Management Corporation,
as General Partner
By:____________________________________________________
Name:
Title:
SENIOR LOAN FUND
BLACKROCK SENIOR LOAN TRUST, each a Lender
By:____________________________________________________
Name:
Title:
CARLYLE HIGH YIELD PARTNERS II, LTD.
CARLYLE HIGH YIELD PARTNERS III, LTD.,
each a Lender
By:____________________________________________________
Name:
Title:
21
WINGED FOOT FUNDING TRUST
By:____________________________________________________
Name:
Title:
JUPITER FUNDING TRUST
By:____________________________________________________
Name:
Title:
OLYMPIC FUNDING TRUST, SERIES 1999-1
By:____________________________________________________
Name:
Title:
MUIRFIELD TRADING LLC, each a Lender
By:____________________________________________________
Name:
Title:
FIRST DOMINION FUNDING I
FIRST DOMINION FUNDING II, each a Lender
By:____________________________________________________
Name:
Title:
SEQUILS-CUMBERLAND I, LTD., Lender
By: Deerfield Capital Management, L.L.C.
as its Collateral Manager
By:____________________________________________________
Name:
Title
EMERALD ORCHARD, LIMITED, Lender
By:____________________________________________________
Name:
Title:
22
HIGHLAND LOAN FUNDING V LTD., Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By:____________________________________________________
Name:
Title:
23
AMARA I FINANCE, LTD.
AMARA 2 FINANCE, LTD.
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIO-1, LTD., each a Lender
By: INVESCO Senior Secured Management, Inc.,
as Subadviser
By:_____________________________________________
Name:
Title:
AERIES FINANCE II LTD., Lender
By: INVESCO Senior Secured Management, Inc.
as Sub-Managing Agent
By:______________________________________________
Name:
Title:
AVALON CAPITAL LTD.
AVALON CAPITAL LTD. 2, each a Lender
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By:______________________________________________
Name:
Title:
CERES II FINANCE LTD., Lender
By: INVESCO Senior Secured Management, Inc.,
as Sub-Managing Agent (Financial)
By:_____________________________________________
Name:
Title:
24
CHARTER VIEW PORTFOLIO, Lender
By: INVESCO Senior Secured Management, Inc.,
as Investment Advisor
By:__________________________________________________
Name:
Title:
By: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By:__________________________________________________
Name:
Title:
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management, Inc.,
as Collateral Manager
By:__________________________________________________
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, Lender
By: David L. Babson & Company Inc.,
as Investment Advisor
By:__________________________________________________
Name:
Title:
MAPLEWOOD (CAYMAN) LIMITED, Lender
By: David L. Babson & Company Inc. under delegated
authority from Massachusetts Mutual Life
Insurance Company as Investment Manager
By:__________________________________________________
Name:
Title:
25
SAAR HOLDINGS CDO LIMITED
SIMSBURY CLO, LIMITED
SOMERS CDO, LIMITED, each a Lender
By: David L. Babson & Company Inc. under delegated
authority from Massachusetts Mutual Life
Insurance Company as Collateral Manager
By:___________________________________________________
Name:
Title:
SUFFIELD CLO, LIMITED, Lender
By: David L. Babson & Company Inc.,
as Collateral Manager
By:___________________________________________________
Name:
Title:
PERSEUS CDO I, LIMITED, Lender
By: David L. Babson & Company Inc. under delegated
authority from Massachusetts Mutual Life
Insurance Company as Portfolio Manager
By:____________________________________________________
Name:
Title:
BILL & MELINDA GATES FOUNDATION, Lender
By: David L. Babson & Company Inc.,
as Investment Adviser
By:____________________________________________________
Name:
Title:
26
OAK HILL CREDIT PARTNERS I, LIMITED, Lender
By: Oak Hill CLO Management I, LLC,
as Investment Manager
By:__________________________________________
Name:
Title:
OCTAGON INVESTMENT PARTNERS II, LLC, Lender
By: Octagon Credit Investors, LLC,
as sub-investment manager
By:____________________________________________
Name:
Title:
OCTAGON INVESTMENT PARTNERS III, LTD.,
Lender
By: Octagon Credit Investors, LLC,
as Portfolio Manager
By:_____________________________________________
Name:
Title:
OCTAGON INVESTMENT PARTNERS IV, LTD.,
Lender
By: Octagon Credit Investors, LLC,
as collateral manager
By:_____________________________________________
Name:
Title:
27
DELANO COMPANY
ROYALTON COMPANY
BEDFORD CDO, LIMITED
ADDISON CDO, LIMITED
JISSEKIKUN FUNDING, LTD.
BALBOA CDO I, LIMITED
SEQUILS-MAGNUM, LTD.
SAN JOAQUIN CDO I LIMITED, each a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By:________________________________________________
Name:
Title:
CAPTIVA III FINANCE LTD.
CAPTIVA IV FINANCE LTD., each a Lender
as advised by Pacific Investment Management
Company LLC
By:________________________________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD. NEW YORK BRANCH, Lender
By:________________________________________________
Name:
Title:
TCW SELECT LOAN FUND, LIMITED, Lender
By: TCW Advisors, Inc., as its Collateral Manager
By:________________________________________________
Name:
Title:
By:________________________________________________
Name:
Title:
28
MOUNTAIN CAPITAL CLO I LTD.
MOUNTAIN CAPITAL CLO II LTD. each a Lender
By: Mountain Capital Advisors,
as its Investment Manager
By:_______________________________________________
Name:
Title:
29
KZH ING-1 LLC, Lender
By:___________________________________
Name:
Title:
KZH ING-2 LLC, Lender
By:___________________________________
Name:
Title:
KZH ING-3 LLC, Lender
By:___________________________________
Name:
Title:
KZH CNC LLC, Lender
By:___________________________________
Name:
Title:
KZH WATERSIDE LLC, Lender
By:___________________________________
Name:
Title:
KZH PONDVIEW LLC, Lender
By:___________________________________
Name:
Title:
30
KZH CRESCENT LLC, Lender
By:___________________________________
Name:
Title:
KZH CRESCENT-2 LLC, Lender
By:___________________________________
Name:
Title:
KZH CRESCENT-3 LLC, Lender
By:___________________________________
Name:
Title:
KZH HIGHLAND-2 LLC, Lender
By:___________________________________
Name:
Title:
KZH PAMCO LLC, Lender
By:___________________________________
Name:
Title:
FRANKLIN CLO II, LIMITED
By:___________________________________
Name:
Title:
31
CONSENT AND AGREEMENT
---------------------
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:____________________________________________
Phil Kramer, Exec. Vice President