EXHIBIT 10.02
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
[Letter of Credit and Hedged Inventory Facility]
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PLAINS MARKETING, L.P.,
as Borrower,
ALL AMERICAN PIPELINE, L.P.
and
PLAINS ALL AMERICAN PIPELINE, L.P.,
as Guarantors,
FLEET NATIONAL BANK,
as Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
BANK OF AMERICA, N.A.,
as Documentation Agent,
BANK ONE, NA (MAIN OFFICE CHICAGO) and BNP PARIBAS,
as Senior Managing Agents,
FLEET SECURITIES, INC.,
as Lead Arranger and Book Manager,
and CERTAIN FINANCIAL INSTITUTIONS,
as Lenders
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$200,000,000
July 2, 2002
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TABLE OF CONTENTS
Page
Schedules and Exhibits:
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Schedule 1 - Lender Schedule
Schedule 2 - Disclosure Schedule
Schedule 3 - Security Schedule
Schedule 4 - Insurance Schedule
Schedule 5 - Borrowing Base Procedures
Exhibit A - Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Forms of Letter of Credit
Exhibit E - Letter of Credit Application and Agreement
Exhibit F - Certificate Accompanying Financial Statements
Exhibit G-1 - Opinion of In-House Counsel for Restricted Persons
Exhibit G-2 - Opinion of Fulbright & Jaworski L.L.P., Counsel for Restricted
Persons
Exhibit G-3 - Opinion of Bennett Jones, Canadian Counsel for Restricted Persons
Exhibit H - Borrowing Base Report
Exhibit I - Environmental Compliance Certificate
Exhibit J - Assignment and Acceptance Agreement
Exhibit K - Intercreditor Agreement
Exhibit L-1 - Commitment Increase Supplement
Exhibit L-2 - New Lender Supplement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is made as of July 2,
2002, by and among PLAINS MARKETING, L.P. ("Borrower"), a Delaware limited
partnership, ALL AMERICAN PIPELINE, L.P. ("All American"), a Texas limited
partnership, PLAINS ALL AMERICAN PIPELINE, L.P. ("Plains MLP"), a Delaware
limited partnership, and FLEET NATIONAL BANK, as administrative agent (in such
capacity, "Administrative Agent"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
syndication agent (in such capacity, "Syndication Agent"), BANK OF AMERICA,
N.A., as documentation agent (in such capacity, "Documentation Agent"), FLEET
SECURITIES, INC., as lead arranger and book manager (in such capacity, "Lead
Arranger and Book Manager") and the Lenders referred to below.
W I T N E S S E T H:
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent, and
Lenders entered into that certain Credit Agreement [Letter of Credit and Hedged
Inventory Facility] dated May 4, 2001 (as amended, restated, or supplemented to
the date hereof, the "Existing Agreement") for the purposes and consideration
therein expressed, pursuant to which one or more such Lenders became obligated
to make and made loans to, and issue letters of credit for the account of,
Borrower as therein provided; and
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent, and
Lenders desire to amend and restate the Existing Agreement for the purposes
described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Existing Agreement, as amended and
restated hereby, in consideration of the loans which may hereafter be made by
Lenders to, and the Letters of Credit that may hereafter be issued by the LC
Issuer for the account of, Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
ARTICLE I - Definitions and References
Section 1.1. Defined Terms. As used in this Agreement, each of the
following terms has the meaning given to such term in this Section 1.1 or in the
sections and subsections referred to below:
"Acceptable Issuer" means any national or state bank or trust company
which is organized under the laws of the United States of America or any state
thereof or any branch licensed to operate under the laws of the United States of
America or any state thereof, which is a branch of a bank organized under any
country which is a member of the Organization for Economic Cooperation and
Development, in each case which has capital, surplus and undivided profits of at
least $500,000,000 and whose commercial paper is rated at least P-1 by Moody's
or A-1 by S&P.
"Account" shall have the meaning given that term in the UCC.
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"Account Debtor" means any Person who is or who may become obligated
under, with respect to, or on account of, an Account.
"Administrative Agent" means Fleet National Bank, as Administrative Agent
hereunder, and its successors in such capacity.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 5% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Affiliate Agreements" means the Crude Oil Marketing Agreement and the
Omnibus Agreement.
"Agent" means any of the Administrative Agent, Syndication Agent or
Documentation Agent.
"Agreement" means this Credit Agreement.
"All American" means All American Pipeline, L.P., a Texas limited
partnership.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of Base Rate Loans and such
Lender's LIBOR Lending Office in the case of LIBOR Loans.
"Applicable Leverage Level" means the level set forth below that
corresponds to the ratio of (i) Consolidated Funded Indebtedness of Plains MLP
and its Subsidiaries to (ii) the Consolidated EBITDA for the applicable period
of four Fiscal Quarters (the "Leverage Ratio"):
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Applicable
Leverage Level Leverage Ratio
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Level I greater than or equal to 4.50 to 1.0
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Level II greater than or equal to 4.25 to 1.0
but less than 4.50 to 1.0
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Level III greater than or equal to 4.00 to 1.0
but less than 4.25 to 1.0
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Level IV greater than or equal to 3.50 to 1.0
but less than 4.00 to 1.0
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Level V greater than or equal to 3.00 to 1.0
but less than 3.50 to 1.0
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Level VI greater than or equal to 2.25 to 1.0
but less than 3.00 to 1.0
Level VII less than 2.25 to 1.0
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The Leverage Ratio (w) will be determined as of the date hereof based upon the
Initial Financial Statements identified in clause (iii) of the defined term
"Initial Financial Statements", (x) upon the Equilon Acquisition Closing Date,
will be determined based upon the Proforma Acquisition Statements, which
determination shall be effective from such date and thereafter until the end of
the Fiscal Quarter in which the Equilon Acquisition Closing Date shall have
occurred, provided, however, if Plains MLP shall have issued equity in an
issuance amount of at least $50,000,000 on or prior to the Equilon Acquisition
Closing Date, then the Proforma Acquisition Statements shall additionally
include the proforma effect of such issuance, and the application of the
proceeds therefrom, effective from and as of the Equilon Acquisition Closing
Date and thereafter until the end of the Fiscal Quarter in which the Equilon
Acquisition Closing Date shall have occurred, (y) if Plains MLP shall issue
equity in an issuance amount of at least $50,000,000 subsequent to the Equilon
Acquisition Closing Date, then the Leverage Ratio will be determined based upon
the proforma effect of such issuance, and the application of the proceeds
therefrom and, if applicable, the Proforma Acquisition Statements, from and as
of the date of such equity issuance and thereafter until the end of the Fiscal
Quarter in which such issuance shall have occurred, and (z) shall be determined
thereafter quarterly by Administrative Agent within two (2) Business Days after
Administrative Agent's receipt of Plains MLP's Consolidated financial statements
for the immediate preceding Fiscal Quarter based upon: (i) Consolidated Funded
Indebtedness as of the end of such Fiscal Quarter, and (ii) the Consolidated
EBITDA for the four Fiscal Quarters ending with such Fiscal Quarter. The
Applicable Leverage Level shall become effective upon such determination of the
Leverage Ratio by Administrative Agent and shall remain effective until the next
such determination by Administrative Agent of the Leverage Ratio. For purposes
of this definition "Applicable Leverage Ratio", the term "Proforma Acquisition
Statements" means the proforma Consolidated financial statements of Plains MLP,
after giving effect to the Equilon Acquisition, which are estimated as of March
31, 2002, which pro forma statements are based upon good faith estimates and
assumptions believed by Plains MLP to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
periods covered by such financial information may differ from the projected
results set forth therein by a material amount.
"Approved Eligible Receivables" means each Eligible Receivable (other
than Eligible Exchange Balances) (a) from a Person whose Debt Rating is either
at least Baa3 by Moody's or at least BBB- by S&P; (b) fully and unconditionally
guaranteed as to payment by a Person whose Debt Rating is either at least Baa3
by Moody's or at least BBB- by S&P; (c) from any other Person Currently Approved
by Majority Lenders; or (d) fully covered by a letter of credit from an
Acceptable Issuer.
"Available Cash" has the meaning given such term in the Partnership
Agreement.
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"Bankruptcy and Insolvency Act (Canada)" means the Bankruptcy and
Insolvency Act, S.C. 1992, c. 27, including the regulations made and, from time
to time, in force under that Act.
"Base Rate" means the sum of (a) the Base Rate Margin plus (b) the higher
of (i) the variable per annum rate of interest so designated from time to time
by Administrative Agent as its "prime rate", or (ii) the Federal Funds Rate plus
one-half percent (0.5%) per annum. The "prime rate" is a reference rate and does
not necessarily represent the lowest or best rate being charged to any customer.
Changes in the Base Rate resulting from changes in the "prime rate" shall take
place immediately without notice or demand of any kind.
"Base Rate Loan" means a Loan which does not bear interest at the LIBOR
Rate.
"Base Rate Margin" means, on any day, the percent per annum set forth
below based on the Applicable Leverage Level in effect on such date.
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Applicable Leverage Level Base Rate Margin
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Level I, Level II, Level III or 0.250%
Level IV
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Level V 0.125%
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Level VI or Level VII 0.000%
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Changes in the applicable Base Rate Margin will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Borrower and Lenders of changes in the Base
Rate Margin.
"Borrower" means Plains Marketing, L.P., a Delaware limited partnership.
"Borrowing" means a borrowing of new Loans of a single Type pursuant to
Section 2.2 or a Continuation or Conversion of all or a portion of an existing
Loan (whether alone or as a combination with a new Loan) into a single Type
(and, in the case of LIBOR Loans, with the same Interest Period) pursuant to
Section 2.3.
"Borrowing Base" means the remainder of (a) minus (b) below as of the
date of determination (without duplication):
(a) the sum of the following as of the date of determination :
(i) 100% of Eligible Cash Equivalents; plus
(ii) 90% of Approved Eligible Receivables; plus
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(iii) the lesser of (A) 85% of Other Eligible Receivables or (B)
_ of the sum of the amounts of clauses (a)(i) plus (a)(ii)
[(i.e., (a)(i) plus (a)(ii) must be 75% of (a)(i) plus
(a)(ii) plus (a)(iii)]; plus
(iv) 85% of Eligible Margin Deposits; plus
(v) 95% of Hedged Eligible Inventory plus 100% of Other
Eligible Inventory Value plus 50% of liquefied petroleum
gases sales that would otherwise qualify as Hedged Eligible
Inventory but for the failure of the counterparty to the
hedging contract covering such sales to meet the
requirements set forth in clause (y) of the definition of
Hedged Eligible Inventory, plus
(vi) 80% of Eligible Exchange Balances; plus
(vii) 100% of all Paid but Unexpired Letters of Credit
MINUS (b) the following as of the date of determination:
(i) 100% of First Purchase Crude Payables; plus
(ii) 100% of Other Priority Claims; plus
(iii) The Estimate Adjustment Amount as provided in the Borrowing
Base procedures set forth on Schedule 6 applicable to each
Borrowing Base Report as provided in Section 2.13; plus
(iv) The amount of any setoff or contra account to any Eligible
Receivable which could arise from an obligation of Borrower
to sell or purchase Petroleum Products in any future month
to the extent not otherwise reflected as a reduction of
Eligible Receivables, such amount to be determined on an
early termination or mark to market basis.
MINUS that portion of such amount attributed to liquefied petroleum gases
exceeding $40,000,000.
"Borrowing Notice" means a written or telephonic request, or a written
confirmation, made by Borrower which meets the requirements of Section 2.2.
"Business Day" means any day, other than a Saturday, Sunday or day which
shall be in the Commonwealth of Massachusetts a legal holiday or day on which
banking institutions are required or authorized to close. Any Business Day in
any way relating to LIBOR Loans (such as the day on which an Interest Period
begins or ends) must also be a day on which commercial banks settle payments in
London.
"Canadian Dollars" and "C$" means the lawful currency of Canada.
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"Canadian Letter of Credit" means any Letter of Credit related to a
purchase or exchange of Petroleum Products in Canada by any Canadian Subsidiary.
"Canadian Subsidiaries" means each of PMC (Nova Scotia) Company, a Nova
Scotia unlimited liability company, Plains Marketing Canada, L.P., an Alberta
limited partnership, and each of their Subsidiaries, whether now owned or
existing or hereafter formed or acquired.
"Capital Lease" means a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"Cash and Carry Purchases" means purchases of Petroleum Products for
physical storage at a Plains Terminal or in storage or in transit in pipelines
Currently Approved by Majority Lenders which constitute (i) Hedged Eligible
Inventory or (ii) liquefied petroleum gases sales that would otherwise qualify
as Hedged Eligible Inventory but for the failure of the counterparty to the
hedging contract covering such purchases to meet the requirements set forth in
clause (y) of the definition of Hedged Eligible Inventory.
"Cash Equivalents" means Investments in:
(a) marketable obligations, maturing within 12 months after acquisition
thereof, issued or unconditionally guaranteed by the United States of America or
the federal government of Canada or an instrumentality or agency thereof and
entitled to the full faith and credit of the United States of America or the
federal government of Canada, as the case may be;
(b) demand deposits and time deposits (including certificates of deposit)
maturing within 12 months from the date of deposit thereof, (i) with any office
of any Lender or (ii) with a domestic office of any national, state or
provincial bank or trust company which is organized under the Laws of the United
States of America or any state therein, or the federal government of Canada or
any province therein, which has capital, surplus and undivided profits of at
least $500,000,000, and whose long-term certificates of deposit are rated at
least Aa3 by Moody's or AA- by S&P;
(c) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in subsection (a) above entered
into with (i) any Lender or (ii) any other commercial bank meeting the
specifications of subsection (b) above;
(d) open market commercial paper, maturing within 270 days after
acquisition thereof, which are rated at least P-1 by Moody's or A-1 by S&P; and
(e) money market or other mutual funds substantially all of whose assets
comprise securities of the types described in subsections (a) through (d) above.
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"Change of Control" means the occurrence of any of the following events:
(i) Qualifying Directors cease for any reason to constitute collectively
a majority of the members of the board of directors of GP LLC (the "Board") then
in office;
(ii) GP LLC shall cease to be, directly or indirectly, the sole legal and
beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of all of the general partner interests (including all
securities which are convertible into general partner interests) of the General
Partner;
(iii) General Partner shall cease to be, directly or indirectly, the sole
legal and beneficial owner (as defined above) of all of the general partner
interests (including all securities which are convertible into general partner
interests) of Plains MLP;
(iv) Plains MLP shall cease to be, directly or indirectly, the sole legal
and beneficial owner (as defined above) of all (a) equity interests of Plains
Newco LLC, (b) limited partner interests of Borrower and All American, (c)
partner interests of Plains Marketing Canada, L.P. (other than the limited
partner interests of Plains Marketing Canada, L.P. that may be issued to CanPet
Energy Group (USA), Inc. or CanPet Energy Group Inc. as permitted under Section
7.4), or (d) capital stock of PMC (Nova Scotia) Company; or
(v) Neither General Partner nor Plains MLP shall continue to be, directly
or indirectly, the sole legal and beneficial owner of the general partner
interest in Borrower and All American.
As used herein, "Qualifying Director" means (i) any Person designated by any
Qualifying Owner as its representative on the Board, (ii) so long as Qualifying
Owners own a majority of the ownership interests of GP LLC entitling the holders
thereof to vote in elections for directors of GP LLC, any Person elected by a
majority of such owners of GP LLC entitled to vote thereon, and (iii) the chief
executive officer of GP LLC, and "Qualifying Owner" means Plains Resources Inc.,
Kayne Anderson Investment Management, EnCap Investments LLC, Sable Minerals, or
any Affiliate of any of the foregoing.
"Co-Agent" shall have the meaning given that term in Section 9.10.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, together with all rules and regulations promulgated with respect thereto.
"Collateral" means all property of any kind which is subject to a Lien in
favor of Lenders (or in favor of Administrative Agent or the collateral agent
under the Intercreditor Agreement for the benefit of Lenders) or which, under
the terms of any Security Document, is purported to be subject to such a Lien,
in each case granted or created to secure all or part of the Obligations.
"Commitment Fee Rate" means, on any day, the rate per annum set forth
below based on the Applicable Leverage Level on such date.
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Applicable Leverage Level Commitment Fee Rate
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Level I or Level II or Level III 0.500%
or Level IV or Level V
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Level VI or Level VII 0.375%
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Changes in the applicable Commitment Fee Rate will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Borrower and Lenders of changes in the
Commitment Fee Rate.
"Commitment Period" means the period from and including the date hereof
until April 30, 2005 (or, if earlier, the day on which (i) the obligation of
Lenders to make Loans hereunder and the obligations of LC Issuer to issue
Letters of Credit hereunder have terminated, (ii) the obligation of LC Issuer to
issue Letters of Credit hereunder has terminated, or (iii) the Notes first
become due and payable in full, whichever shall first occur).
"Companies' Creditors Arrangement Act (Canada)" means the Companies'
Creditors Arrangement Act, R.S.C. 1985, c. C-36, including the regulations made
and from time to time in force under that Act.
"Consolidated" refers to the consolidation of any Person, in accordance
with GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"Consolidated EBITDA" means, for any period, the sum of (1) the
Consolidated Net Income of Plains MLP and its Subsidiaries during such period,
plus (2) all interest expense which was deducted in determining such
Consolidated Net Income for such period, plus (3) all income taxes (including
any franchise taxes to the extent based upon net income) which were deducted in
determining such Consolidated Net Income, plus (4) all depreciation,
amortization (including amortization of good will and debt issue costs) and
other non-cash charges (including any provision for the reduction in the
carrying value of assets recorded in accordance with GAAP) which were deducted
in determining such Consolidated Net Income, minus (5) all non-cash items of
income which were included in determining such Consolidated Net Income.
"Consolidated Funded Indebtedness" means as of any date, the sum of the
following (without duplication): (i) all Indebtedness which is classified as
"long-term indebtedness" on a consolidated balance sheet of Plains MLP and its
Consolidated Subsidiaries prepared as of such date in accordance with GAAP and
any current maturities and other principal amount in respect of such
Indebtedness due within one year but which was classified as "long-term
indebtedness" at the creation thereof, (ii) indebtedness for borrowed money of
Plains MLP and its Consolidated Subsidiaries outstanding under a revolving
credit or similar agreement providing for borrowings (and renewals and
extensions thereof) over a period of more than one year, notwithstanding the
fact that any such borrowing is made within one year of the expiration of such
agreement, and (iii) Indebtedness in respect of Capital Leases of Plains MLP and
its Consolidated Subsidiaries;
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provided, however, Consolidated Funded Indebtedness shall not include
Indebtedness in respect of letters of credit or in respect of Cash and Carry
Purchases or margin deposits.
"Consolidated Net Income" means, for any period, Plains MLP's and its
Subsidiaries' gross revenues for such period, including any cash dividends or
distributions actually received from any other Person during such period, minus
Plains MLP's and its Subsidiaries' expenses and other proper charges against
income (including taxes on income to the extent imposed), determined on a
Consolidated basis after eliminating earnings or losses attributable to
outstanding minority interests and excluding the net earnings of any Person
other than a Subsidiary in which Plains MLP or any of its Subsidiaries has an
ownership interest. Consolidated Net Income shall not include (i) any gain or
loss from the sale of assets, (ii) any extraordinary gains or losses, or (iii)
any non-cash gains or losses resulting from mark to market activity as a result
of the implementation of SFAS 133 or EITF 98-10. In addition, Consolidated Net
Income shall not include the cost or proceeds of purchasing or selling options
which are used to hedge future activity, until the period in which such hedged
future activity occurs.
"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.
"Consolidated Secured Indebtedness" means any Consolidated Funded
Indebtedness secured in whole or in part by any Lien on any assets or properties
of Plains MLP or any of its Subsidiaries, including without limitation the
Obligations.
"Continuation/Conversion Notice" means a written or telephonic request,
or a written confirmation, made by Borrower which meets the requirements of
Section 2.3.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.3 hereof of a LIBOR Loan as a LIBOR Loan from
one Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 2.3 or Article III of one Type of Loan into another Type of
Loan.
"Crude Oil Marketing Agreement" means that certain Crude Oil Marketing
Agreement among Resources, Plains Illinois Inc., Stocker Resources, L.P.,
Arguello Inc. and Borrower dated November 23, 1998.
"Current Trading Month" has the meaning given that term in Section 7.15.
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"Currently Approved by Majority Lenders" means such Person (including a
limit on the maximum credit exposure to any such Person), storage location,
pipeline, form of Letter of Credit or other matter as the case may be, as
reflected in the most recent written notice given by Administrative Agent to
Borrower as being approved by Majority Lenders. Each such written notice will
supersede and revoke each prior notice.
"Debt Coverage Ratio" shall have the meaning given that term in Section
7.12.
"Debt Rating" means with respect to a Person, the rating then in effect
by a Rating Agency for the long term senior unsecured non-credit enhanced debt
of such Person.
"Default" means any Event of Default and any default, event or condition
which would, with the giving of any requisite notices and the passage of any
requisite periods of time, constitute an Event of Default.
"Default Rate" means, at the time in question, (i) three and
three-fourths percent (3.75%) per annum plus the LIBOR Rate then in effect for
any LIBOR Loan (up to the end of the applicable Interest Period) or (ii) two
percent (2%) per annum plus the Base Rate for each Base Rate Loan; provided,
however, the Default Rate shall never exceed the Highest Lawful Rate
"Default Rate Period" means (i) any period during which an Event of
Default, other than pursuant to Section 8.1 (a) or (b), is continuing, provided
that such period shall not begin until notice of the commencement of the Default
Rate has been given to Borrower by Administrative Agent upon the instruction by
Majority Lenders and (ii) any period during which any Event of Default pursuant
to Section 8.1 (a) or (b) is continuing unless Borrower has been notified
otherwise by Administrative Agent upon the instruction by Majority Lenders.
"Disclosure Schedule" means Schedule 2 hereto.
"Dollar Equivalent" of any amount of any currency at any date means (i)
if such currency is Dollars, the amount of such currency, or (ii) if such
currency is Canadian Dollars, the equivalent in Dollars of such amount of such
currency based upon the rate of exchange for such conversion as quoted by the
Bank of Canada at approximately 12:00 noon, Toronto time (or, if not so quoted,
the spot rate of exchange quoted for wholesale transactions made by
Administrative Agent) on the date on or as of which such amount is to be
determined.
"Dollars" and "$" means the lawful currency of the United States of
America, except where otherwise specified.
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" in the Lender Schedule
hereto, or such other office as such Lender may from time to time specify to
Borrower and Administrative Agent; with respect to LC Issuer, the office,
branch, or agency through which it issues Letters of Credit; and, with respect
to Administrative Agent, the office, branch, or agency through which it
administers this Agreement.
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"Effective Time" shall have the meaning given that term in Section 10.13.
"Eligible Cash Equivalents" means Cash Equivalents in which Borrower has
lawful and absolute title, which are free from any express or implied at law
Lien, trust or other beneficial interest, in which Administrative Agent holds a
fully perfected first-priority security interest prior to the rights of, and
enforceable as such against, any other Persons pursuant to an account agreement
satisfactory to Administrative Agent and which remain under the sole dominion
and control of Administrative Agent.
"Eligible Exchange Balances" means each Approved Eligible Receivable
(including for this purpose only either the right to receive Petroleum Products
in kind or to receive money) arising from the trading, lending, borrowing or
exchange of Petroleum Products, net of any netted obligations or other offsets
or counterclaims determined in accordance with prices set forth in the
applicable exchange contracts, based on current value at the Market Price, in
which Borrower has lawful and absolute title, which is not subject to any Lien
in favor of any Person (other than Permitted Inventory Liens), and which is
subject to a fully perfected first-priority security interest (subject only to
Permitted Inventory Liens) in favor of Administrative Agent pursuant to the Loan
Documents prior to the rights of, and enforceable as such against, any other
Persons minus without duplication the amount of any Permitted Inventory Lien on
any Petroleum Products receivable in kind.
"Eligible Inventory" means inventories of Petroleum Products in which
Borrower or Plains Marketing Canada, L.P. has lawful and absolute title
(specifically excluding, however, tank bottoms and pipeline linefill of any
Restricted Person classified as a long-term asset), which are not subject to any
Lien in favor of any Person (other than Permitted Inventory Liens), which are
subject to a fully perfected first priority security interest (subject only to
Permitted Inventory Liens) in favor of Administrative Agent pursuant to the Loan
Documents prior to the rights of, and enforceable as such against, any other
Person, which are otherwise satisfactory to Majority Lenders in their reasonable
business judgment and which are located in storage locations (including
pipelines) which are either (a) owned by a Restricted Person or (b) Currently
Approved by Majority Lenders minus without duplication the amount of any
Permitted Inventory Lien on any such inventory. Eligible Inventory shall
specifically exclude inventory to be delivered in the current or next succeeding
trading month.
"Eligible Margin Deposit" means net equity value of investments by
Borrower in margin deposit accounts with commodities brokers on nationally
recognized exchanges subject to a perfected security interest in favor of
Administrative Agent and a three-party agreement among Borrower, Administrative
Agent and the depository institution, in form and substance satisfactory to
Administrative Agent.
"Eligible Receivables" means, at the time of any determination thereof
(and without duplication), each Account and, with respect to each determination
made on or after the 20th day of each calendar month and prior to the first day
of the next calendar month, each amount which will be, in the good faith
estimate reasonably determined by Borrower, an Account of the Borrower or Plains
Marketing Canada, L.P. with respect to sales and deliveries of Petroleum
Products during such calendar month or deliveries of Petroleum Products during
the next
11
calendar month under firm written purchase and sale agreements, in either event
as to which the following requirements have been fulfilled (or as to future
Accounts, will be fulfilled as of the date of such sales and deliveries of
Petroleum Products), to the reasonable satisfaction of Administrative Agent:
(i) Borrower or Plains Marketing Canada, L.P. has lawful and
absolute title to such Account;
(ii) such Account is a valid, legally enforceable obligation of
an Account Debtor payable in Dollars or Canadian Dollars, arising from
the sale and delivery of Petroleum Products to such Person in the United
States of America or Canada in the ordinary course of business of
Borrower or Plains Marketing Canada, L.P., to the extent of the volumes
of Petroleum Products delivered to such Person prior to the date of
determination;
(iii) there has been excluded from such Account (A) any portion
that is subject to any dispute, rejection, loss, non-conformance,
counterclaim or other claim or defense on the part of any Account Debtor
or to any claim on the part of any Account Debtor denying liability under
such Account, and (B) the amount of any account payable or other
liability owed by Borrower or Plains Marketing Canada, L.P. to the
Account Debtor on such Account, whether or not a specific netting
agreement may exist, excluding, however, any portion of any such account
payable or other liability which is at the time in question covered by a
Letter of Credit;
(iv) Borrower or Plains Marketing Canada, L.P. has the full and
unqualified right to assign and grant a security interest in such Account
to Administrative Agent as security for the Obligation;
(v) such Account (A) is evidenced by an invoice rendered to the
Account Debtor, or (B) represents the uninvoiced amount in respect of
volumes of Petroleum Products scheduled to be delivered by Borrower or
Plains Marketing Canada, L.P. in the current or next-following calendar
month, is governed by a purchase and sale agreement, exchange agreement
or other written agreement, and in either event such Account is not
evidenced by any promissory note or other instrument;
(vi) such Account is not subject to any Lien in favor of any
Person and is subject to a fully perfected first priority security
interest in favor of Administrative Agent pursuant to the Loan Documents,
prior to the rights of, and enforceable as such against, any other Person
except for a Lien in respect of First Purchase Crude Payables;
(vii) such Account is due not more than 30 days following the
last day of the calendar month in which the Petroleum Products delivery
occurred and is not more than 30 days past due (except that Accounts of a
single Account Debtor in excess of the Dollar Equivalent of $500,000
which are not Approved Eligible Receivables shall be excluded from
Eligible Receivables if not paid within three Business Days after the due
date);
12
(viii) such Account is not payable by an Account Debtor with more
than twenty percent (20%) of its Accounts to Borrower or Plains Marketing
Canada, L.P. that are outstanding more than 60 days from the invoice
date;
(ix) the Account Debtor in respect of such Account (A) is
located, is conducting significant business or has significant assets in
the United States of America or Canada or is a Person Currently Approved
by Majority Lenders, (B) is not an Affiliate of Borrower or Plains
Marketing Canada, L.P., and (C) is not the subject of any event of the
type described in Section 8.1(i);
(x) the Account Debtor in respect of such Account is not a
governmental authority, domestic or foreign;
(xi) such Account is not the obligation of an Account Debtor
that Administrative Agent or Majority Lenders determine in good faith
that there is a legitimate concern over the timing or collection of such
receivable; and
(xii) if such Account is an Account owned by Plains Marketing
Canada, L.P., to the extent the Lien on such Account in favor of
Administrative Agent described in clause (vi) above is valid and
non-avoidable under applicable Law.
"Eligible Transferee" means a Person which either (a) is a Lender, or (b)
is consented to as an Eligible Transferee by Administrative Agent and, so long
as no Default or Event of Default is continuing, by Borrower, which consents in
each case will not be unreasonably withheld (provided that no Person organized
outside the United States may be an Eligible Transferee if Borrower would be
required to pay withholding taxes on interest or principal owed to such Person).
"Environmental Laws" means any and all Laws relating to the environment
or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.
"Equilon Acquisition" means the acquisition by Plains MLP or any one or
more other Restricted Persons that is a permitted assign under the Equilon
Acquisition Documents of certain assets from Shell Pipeline Company LP (f/k/a
Equilon Pipeline Company LLC) and Equilon Enterprises LLC dba Shell Oil Products
US pursuant to the Equilon Acquisition Documents, as previously disclosed by
Borrower to Administrative Agent and Lenders.
"Equilon Acquisition Documents" means that certain Purchase and Sale
Agreement dated May 2, 2002 among Shell Pipeline Company LP (f/k/a Equilon
Pipeline Company LLC) and Equilon Enterprises LLC dba Shell Oil Products US as
sellers, and Plains MLP as buyer, and the title transfer documents and all other
agreements or instruments executed and delivered by such parties in connection
therewith to consummate the Equilon Acquisition.
13
"Equilon Acquisition Closing Date" means the date on which the Equilon
Acquisition shall have been consummated in accordance with the terms of the
Equilon Acquisition Documents.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Affiliate" means each Restricted Person and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control that, together with such Restricted Person,
are treated as a single employer under Section 414 of the Code.
"ERISA Plan" means any employee pension benefit plan subject to Title IV
of ERISA maintained by any ERISA Affiliate with respect to which any Restricted
Person has a fixed or contingent liability.
"Event of Default" has the meaning given to such term in Section 8.1.
"Existing Agreement" has the meaning given in the first recital.
"Facility Usage" means, at the time in question, the aggregate amount of
outstanding Loans and LC Obligations at such time.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/1000th of one percent) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate quoted to Administrative Agent on such day on such transactions as
determined by Administrative Agent.
"First Purchase Crude Payables" means the unpaid amount of any payable
obligation related to the purchase of Petroleum Products by Borrower which
Administrative Agent determines will be secured by a statutory Lien, including
but not limited to the statutory Liens, if any, created under the laws of Texas,
New Mexico, Wyoming, Kansas, Oklahoma or any other state or under the Laws of
Canada or any province thereof to the extent such payable obligation is not at
the time in question covered by a Letter of Credit.
"Fiscal Quarter" means a three-month period ending on March 31, June 30,
September 30 or December 31 of any year.
"Fiscal Year" means a twelve-month period ending on December 31 of any
year.
14
"Floating Price Contract" has the meaning given that term in Section
7.15.
"GAAP" means those generally accepted accounting principles and practices
which are recognized as such by the Financial Accounting Standards Board (or any
generally recognized successor) and which, in the case of Plains MLP and its
Consolidated Subsidiaries, are applied for all periods after the date hereof in
a manner consistent with the manner in which such principles and practices were
applied to the Initial Financial Statements. If any change in any accounting
principle or practice is required by the Financial Accounting Standards Board
(or any such successor) in order for such principle or practice to continue as a
generally accepted accounting principle or practice, all reports and financial
statements required hereunder with respect to Plains MLP or with respect to
Plains MLP and its Consolidated Subsidiaries may be prepared in accordance with
such change, but all calculations and determinations to be made hereunder may be
made in accordance with such change only after notice of such change is given to
each Lender, and Majority Lenders agree to such change insofar as it affects the
accounting of Plains MLP or of Plains MLP and its Consolidated Subsidiaries.
"General Partner" means Plains AAP, L.P., a Delaware limited partnership,
in its capacity as the sole general partner of Plains MLP.
"GP LLC" means Plains All American GP LLC, a Delaware limited liability
company.
"Guarantors" means Plains MLP and all of its Subsidiaries (including All
American but excluding Borrower) and any other Person who has guaranteed some or
all of the Obligations and who has been accepted by Administrative Agent as a
Guarantor or any Subsidiary of Plains MLP which now or hereafter executes and
delivers a guaranty to Administrative Agent pursuant to Section 6.17.
"Hazardous Materials" means any substances regulated under any
Environmental Law, whether as pollutants, contaminants, or chemicals, or as
industrial, toxic or hazardous substances or wastes, or otherwise.
"Hedged Eligible Inventory" means (a) Eligible Inventory or (b) Petroleum
Products inventory scheduled to be purchased in the following month, which in
either case has been hedged for delivery (i) if hedged by a NYMEX contract to a
date not later than the expiration date of such NYMEX contract, and (ii) if
hedged by a means other than a NYMEX contract, 5 years, by either
(x) a contract on the NYMEX arranged through brokers approved by
Administrative Agent and with whom a three-party agreement among
Borrower, Administrative Agent and such broker has been entered in form
and substance satisfactory to Administrative Agent or
(y) a contract for physical delivery of such inventory to a
counterparty whose Account would qualify as an Approved Eligible
Receivable or
15
(ii) otherwise hedged in a manner satisfactory to Majority Lenders. The value of
Hedged Eligible Inventory shall be the volume of the inventory times the prices
fixed in such hedge, minus all storage, transportation and other applicable
costs.
"Hedging Contract" means (a) any agreement providing for options, swaps,
floors, caps, collars, forward sales or forward purchases involving interest
rates, commodities or commodity prices, equities, currencies, bonds, or indexes
based on any of the foregoing, (b) any option, futures or forward contract
traded on an exchange, and (c) any other derivative agreement or other similar
agreement or arrangement, excluding in each case for purposes of Section 7.3
only, any such agreement or contract covering Petroleum Products.
"Highest Lawful Rate" means, with respect to each Lender Party to whom
Obligations are owed, the maximum nonusurious rate of interest that such Lender
Party is permitted under applicable Law to contract for, take, charge, or
receive with respect to such Obligations. All determinations herein of the
Highest Lawful Rate, or of any interest rate determined by reference to the
Highest Lawful Rate, shall be made separately for each Lender Party as
appropriate to assure that the Loan Documents are not construed to obligate any
Person to pay interest to any Lender Party at a rate in excess of the Highest
Lawful Rate applicable to such Lender Party.
"Incentive and Option Plans" means the Plains All American GP LLC 1998
Long-Term Incentive Plan as in effect on the date hereof, the Plains All
American Inc. Management Incentive Plan as in effect on the date hereof and
those certain Transaction Grant Agreements disclosed in writing to
Administrative Agent prior to the date of this Agreement.
"Income Tax Act (Canada)" means the Income Tax Act, R.S.C. 1985 c. 1
(fifth supplement), including the regulations made and, from time to time, in
force under that Act.
"Indebtedness" of any Person means its Liabilities (without duplication)
in any of the following categories:
(a) Liabilities for borrowed money,
(b) Liabilities constituting an obligation to pay the deferred purchase
price of property or services, other than contingent purchase price or similar
obligations incurred in connection with an acquisition and not yet earned or
determinable,
(c) Liabilities evidenced by a bond, debenture, note or similar
instrument,
(d) Liabilities (other than reserves for taxes and reserves for
contingent obligations) which (i) would under GAAP be shown on such Person's
balance sheet as a liability and (ii) are payable more than one year from the
date of creation or incurrence thereof,
(e) Liabilities arising under Hedging Contracts (on a net basis to the
extent netting is provided for in the applicable Hedging Contract),
(f) Liabilities constituting principal under Capital Leases,
16
(g) Liabilities arising under conditional sales or other title retention
agreements,
(h) Liabilities owing under direct or indirect guaranties of Liabilities
of any other Person or otherwise constituting obligations to purchase or acquire
or to otherwise protect or insure a creditor against loss in respect of
Liabilities of any other Person (such as obligations under working capital
maintenance agreements, agreements to keep-well, or agreements to purchase
Liabilities, assets, goods, securities or services), but excluding endorsements
in the ordinary course of business of negotiable instruments in the course of
collection,
(i) Liabilities consisting of an obligation to purchase or redeem
securities or other property, if such Liabilities arises out of or in connection
with the sale or issuance of the same or similar securities or property (for
example, repurchase agreements, mandatorily redeemable preferred stock and
sale/leaseback agreements),
(j) Liabilities with respect to letters of credit or applications or
reimbursement agreements therefor,
(k) Liabilities with respect to banker's acceptances, or
(l) Liabilities with respect to obligations to deliver goods or services
in consideration of advance payments therefor;
provided, however, that the "Indebtedness" of any Person shall not include
Liabilities that were incurred in the ordinary course of business by such Person
on ordinary trade terms to vendors, suppliers or other Persons providing goods
and services for use by such Person in the ordinary course of its business,
unless and until such Liabilities are outstanding more than 120 days after the
date the respective goods are delivered or the respective services are rendered,
other than Liabilities contested in good faith by appropriate proceedings, if
required, and for which adequate reserves are maintained on the books of such
Person in accordance with GAAP.
"Initial Financial Statements" means (i) the audited Consolidated
financial statements of Plains MLP as of December 31, 2001, (ii) the unaudited
consolidating balance sheet and income statement of Plains MLP as of December
31, 2001, (iii) the unaudited Consolidated and consolidating balance sheet and
income statement of Plains MLP as of March 31, 2002, and (iv) the unaudited pro
forma Consolidated balance sheet of Plains MLP as of December 31, 2001, after
giving effect to the Equilon Acquisition.
"Insurance Schedule" means Schedule 4 attached hereto.
"Intercreditor Agreement" means that certain Intercreditor Agreement of
even date herewith among Administrative Agent, the Lenders and the other Lender
Parties, and the "Administrative Agent", the "Lenders" and the other "Lender
Parties" under the Revolver Agreement substantially in the form of Exhibit K
hereto.
"Interest Act (Canada)" means the Interest Act, R.S.C. 1985, c. I-15,
including the regulations made and, from time to time, in force under that Act.
17
"Interest Expense" means, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between Plains MLP and its Subsidiaries and all other items required
to be eliminated in the course of the preparation of Consolidated financial
statements of Plains MLP and its Subsidiaries in accordance with GAAP): (a) all
interest and commitment fees in respect of Indebtedness of Plains MLP or any of
its Subsidiaries (including imputed interest on Capital Lease Obligations) which
are accrued during such period and whether expensed in such period or
capitalized; plus (b) all fees, expenses and charges in respect of letters of
credit issued for the account of Plains MLP or any of its Subsidiaries, which
are accrued during such period and whether expensed in such period or
capitalized.
"Interest Payment Date" means (a) with respect to each Base Rate Loan,
the last day of each March, June, September and December beginning June 30,
2001, and (b) with respect to each LIBOR Loan, the last day of the Interest
Period that is applicable thereto.
"Interest Period" means, with respect to each particular LIBOR Loan in a
Borrowing, the period specified in the Borrowing Notice or
Continuation/Conversion Notice applicable thereto, beginning on and including
the date specified in such Borrowing Notice or Continuation/Conversion Notice
(which must be a Business Day), and ending one, two or three months thereafter,
as Borrower may elect in such notice; provided that: (a) any Interest Period
which would otherwise end on a day which is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day; (b) any Interest Period which begins on the last
Business Day in a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day in a calendar month; and (c) notwithstanding
the foregoing, no Interest Period may be selected that would end after the last
day of the Commitment Period.
"Investment" means any investment made, directly or indirectly in any
Person, whether by acquisition of shares of capital stock, indebtedness or other
obligations or securities or by loan, advance, capital contribution or otherwise
and whether made in cash, by the transfer of property or by any other means.
"Judgment Interest Act (Alberta)" means the Judgment Interest Act, S.A.
1984 c. J-O.5, including the regulations made and, from time to time, in force
under that Act.
"Law" means any statute, law, regulation, ordinance, rule, treaty,
judgment, order, decree, permit, concession, franchise, license, agreement or
other governmental restriction of the United States or Canada or any state,
province or political subdivision thereof or of any foreign country or any
department, state, province or other political subdivision thereof.
"LC Application" means any application for a Letter of Credit hereafter
made by Borrower or Plains Marketing Canada, L.P. to LC Issuer.
"LC Collateral" has the meaning given to such term in Section 2.11(a).
18
"LC Issuer" means Fleet National Bank, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity. Administrative
Agent may, with the consent of Borrower and the Lender in question, appoint any
Lender hereunder as an LC Issuer in place of or in addition to Fleet National
Bank.
"LC Obligations" means, at the time in question, the sum of all Matured
LC Obligations plus the maximum amounts which LC Issuer might then or thereafter
be called upon to advance under all Letters of Credit then outstanding.
"Lender Parties" means Administrative Agent, LC Issuer, and all Lenders.
"Lender Schedule" means Schedule 1 hereto.
"Lenders" means each signatory hereto (other than Borrower and any
Restricted Person that is a party hereto), including Fleet National Bank, in its
capacity as a Lender hereunder rather than as Administrative Agent and LC
Issuer, and the successors and each permitted assign of each such party as
holder of a Note.
"Letter of Credit" means any letter of credit issued by LC Issuer
hereunder or under the Existing Agreement (i) at the application of Borrower,
which shall be issued in Dollars, or (ii) with respect to Canadian Letters of
Credit, at the application of either Borrower or Plains Marketing Canada, L.P.,
which may be issued in either Dollars or Canadian Dollars.
"Letter of Credit Fee Rate" means, on any day, the rate per annum set
forth below based on the Applicable Leverage Level on such date.
==============================================================
Applicable Leverage Level LC Fee Rate
------------------------------------------------------------
Level I, Level II, Level III or 1.750%
Level IV
------------------------------------------------------------
Level V 1.625%
------------------------------------------------------------
Level VI 1.500%
------------------------------------------------------------
Level VII 1.250%
==============================================================
Changes in the applicable Letter of Credit Fee Rate will occur automatically
without prior notice as changes in the Applicable Leverage Level occur.
Administrative Agent will give notice promptly to Borrower and Lenders of
changes in the Letter of Credit Fee Rate.
"Liabilities" means, as to any Person, all indebtedness, liabilities and
obligations of such Person, whether matured or unmatured, liquidated or
unliquidated, primary or secondary, direct or indirect, absolute, fixed or
contingent, and whether or not required to be considered pursuant to GAAP.
19
"LIBOR Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "LIBOR Lending Office" on the Lender Schedule
hereto (or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time specify to
Borrower and Administrative Agent.
"LIBOR Loan" means a Loan that bears interest at a rate based upon the
LIBOR Rate.
"LIBOR Rate" means, as applicable to any LIBOR Loan within a Borrowing
and with respect to the related Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/32 of 1%) as determined on the
basis of offered rates for deposits in U.S. dollars, for a period of time
comparable to such Interest Period which appears on Telerate Page 3750 (or any
successor page) as of 11:00 a.m. London time on the day that is two Business
Days preceding the first day of such LIBOR Loan; provided, however, if the rate
described above does not appear on the Telerate system on any applicable
interest determination date, the LIBOR Rate shall be the rate (rounded upwards
as described above, if necessary) for deposits in dollars for a period
substantially equal to such Interest Period on the Reuters Page "LIBO" (or such
other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London time), on the date that is two
Business Days prior to the beginning of such Interest Period; provided, however,
if more than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/1000 of 1%). If both the Telerate and Reuters system
are unavailable, then the LIBOR Rate for that date will be determined on the
basis of the offered rates for deposits in U.S. dollars for a period of time
comparable to such Interest Period which are offered by four major banks in the
London interbank market at approximately 11:00 a.m. London time, on the day that
is two (2) Business Days preceding the first day of such LIBOR Loan as selected
by Administrative Agent. The principal London office of each of the four major
London banks will be requested to provide a quotation of its U.S. dollar deposit
offered rate. If at least two such quotations are provided, the rate for that
date will be the arithmetic mean of the quotations. If fewer than two quotations
are provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in U.S. dollars to leading European banks
for a period of time comparable to such Interest Period offered by major banks
in New York City at approximately 11:00 a.m. New York City time, on the day that
is two Business Days preceding the first day of such LIBOR Loan. In the event
that Administrative Agent is unable to obtain any such quotation as provided
above, it will be deemed that the LIBOR Rate pursuant to such LIBOR Loan cannot
be determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR deposits of any
Lender, then for any period during which such Reserve Percentage shall apply,
the LIBOR Rate shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage. "Reserve Percentage" means the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal, special, emergency and other reserves) which is imposed on member
banks of the Federal Reserve System against "Euro-currency Liabilities" as
defined in Regulation D. Without limiting the effect of the foregoing, the
Reserve Percentage shall reflect any other reserves required to be maintained by
such member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the LIBOR Rate is to be determined, or (b) any
category of extensions of credit or other assets which include LIBOR
20
Loans. The LIBOR Rate for any LIBOR Loan shall change whenever the Reserve
Percentage changes.
"LIBOR Rate Margin" means, on any day, the percent per annum set forth
below based on the Applicable Leverage Level in effect on such date.
===================================================================
Applicable Leverage Level LIBOR Rate Margin
-----------------------------------------------------------------
Level I, Level II, Level III or 1.750%
Level IV
-----------------------------------------------------------------
Level V 1.625%
-----------------------------------------------------------------
Level VI 1.500%
-----------------------------------------------------------------
Level VII 1.250%
===================================================================
Changes in the applicable LIBOR Rate Margin will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Borrower and Lenders of changes in the LIBOR
Rate Margin.
"Lien" means, with respect to any property or assets, any right or
interest therein of a creditor to secure Liabilities owed to it or any other
arrangement with such creditor which provides for the payment of such
Liabilities out of such property or assets or which allows such creditor to have
such Liabilities satisfied out of such property or assets prior to the general
creditors of any owner thereof, including any lien, mortgage, security interest,
pledge, deposit, production payment, rights of a vendor under any title
retention or conditional sale agreement or lease substantially equivalent
thereto, tax lien, mechanic's or materialman's lien, or any other charge or
encumbrance for security purposes, whether arising by Law or agreement or
otherwise, but excluding any right of offset which arises without agreement in
the ordinary course of business. "Lien" also means any filed financing
statement, any registration of a pledge (such as with an issuer of
uncertificated securities), or any other arrangement or action which would serve
to perfect a Lien described in the preceding sentence, regardless of whether
such financing statement is filed, such registration is made, or such
arrangement or action is undertaken before or after such Lien exists.
"Loans" has the meaning given to such term in Section 2.1.
"Loan Documents" means this Agreement, the Notes, the Security Documents,
the Letters of Credit, the LC Applications, and all other agreements,
certificates, documents, instruments and writings at any time delivered in
connection herewith or therewith (exclusive of term sheets and commitment
letters).
"Majority Lenders" means Lenders whose aggregate Percentage Shares equal
or exceed sixty-six and two-thirds percent (66_%).
21
"Market Price" means on each day a spot price for the inventory of
Petroleum Products being valued, determined by published prices and methodology
approved by Administrative Agent from time to time, based on an index gravity
and grade of Petroleum Products at a delivery point reflecting as nearly as
practical the actual gravity, grade, and location of the Petroleum Products
being valued, adjusted to reflect any differences in gravity and grade between
the index Petroleum Products and the actual inventory and to reflect
transportation costs or other appropriate location price differential from the
actual location to the index location.
"Material Adverse Change" means a material and adverse change, from the
state of affairs presented in the Initial Financial Statements or as represented
or warranted in any Loan Document, to (a) Plains MLP's Consolidated financial
condition, (b) Plains MLP's Consolidated operations, properties or prospects,
considered as a whole, (c) Borrower's ability to timely pay the Obligations, or
(d) the enforceability of the material terms of any Loan Document.
"Material Market Open Position Loss" means a cumulative amount of net
losses resulting from Open Positions (other than Open Positions permitted under
Section 7.15) of all Restricted Persons on a mark to market basis during any
period of 12 consecutive months in excess of the Dollar Equivalent of
$5,000,000, calculated without inclusion of that portion of the loss arising
from unauthorized trading activity by Borrower during the period of January 1,
1999 to November 20, 1999 incurred during such 12-month period.
"Matured LC Obligations" means all amounts paid by LC Issuer on drafts or
demands for payment drawn or made under or purported to be under any Letter of
Credit and all other amounts due and owing to LC Issuer under any LC Application
for any Letter of Credit, to the extent the same have not been repaid to LC
Issuer (with the proceeds of Loans or otherwise).
"Maximum Drawing Amount" means at the time in question the sum of the
maximum amounts which LC Issuer might then or thereafter be called upon to
advance under all Letters of Credit then outstanding.
"Maximum Facility Amount" means the amount of $200,000,000, as such
amount may be reduced by Borrower from time to time as provided in Section 2.12
or increased as provided in Section 2.14.
"Moody's" means Moody's Investor Service, Inc., or its successor.
"Note" has the meaning given to such term in Section 2.1.
"NYMEX" means the New York Mercantile Exchange.
"Obligations" means all Liabilities from time to time owing by any
Restricted Person to any Lender Party under or pursuant to any of the Loan
Documents, including all LC Obligations. "Obligation" means any part of the
Obligations.
"Offsetting Position" means (i) any offsetting sale or purchase
agreement, (ii) an offsetting NYMEX contract, (iii) an offsetting physical
inventory position (excluding tank bottoms and pipeline linefill inventory
classified as a long term asset and working inventory not
22
held for resale), (iv) for any month subsequent to the Current Trading Month, up
to fifteen percent (15%) of crude oil lease purchase volumes purchased in such
Current Trading Month under 30-day evergreen floating price contracts, (v)
unused physical storage capacity at Plains Terminals in the relevant period, or
(vi) an offsetting swap, collar or option contract, in each case eliminating
price risk and substantially all basis risk.
"Omnibus Agreement" means that certain Omnibus Agreement between
Resources, Plains MLP, Borrower, All American and General Partner dated November
23, 1998.
"Open Position" means, with respect to Petroleum Products inventory or
Petroleum Products purchase or sale contracts, any position that does not have
an Offsetting Position.
"Other Eligible Inventory Value" means the following amount of Eligible
Inventory, other than Hedged Eligible Inventory: (a) if the WTI Price is less
than or equal to $30 per barrel, 80% of the product of the volume of such crude
oil times the Market Price, or (b) if the WTI Price is greater than $30 per
barrel the greater of (i) 70% of the product of the volume of such crude oil
times the Market Price or (ii) 80% of the product of the volume of such crude
oil times $30 per barrel; minus, in each case, all storage, transportation and
other applicable costs. As used herein "WTI Price" means on each day the Platt's
Average Spot Price for West Texas intermediate crude oil (Cushing, Oklahoma).
"Other Eligible Receivable" means any Eligible Receivable which is not an
Approved Eligible Receivable nor an Eligible Exchange Balance. The portions of
the aggregate of the Other Eligible Receivables owed by any obligor and its
Affiliates exceeding five percent (5%) of the sum of (i) Approved Eligible
Receivables plus (ii) Other Eligible Receivables, shall not be included without
the prior written approval of the Majority Lenders.
"Other Priority Claims" means any account payable, obligation or
liability which Administrative Agent has determined has or will have a Lien upon
or claim against any Cash Equivalent, account or inventory of Borrower or Plains
Marketing Canada, L.P. senior or equal in priority to the security interests in
favor of Administrative Agent for the benefit of Lenders, in each case to the
extent such Cash Equivalent, account or inventory of Borrower or Plains
Marketing Canada, L.P. is otherwise included in the determination of the
Borrowing Base and the included portion thereof has not already been reduced by
such Lien or claim.
"Paid but Unexpired Letters of Credit" means, on any day, the maximum
drawing amount of Letters of Credit on such day where no underlying obligation
exists on such day, or if the amount of the Letter of Credit exceeds the
underlying obligation on such day, the amount of such excess. As used herein,
"underlying obligation" includes without limitation, all existing and future
obligations to the beneficiary of such Letter of Credit in respect of Petroleum
Products purchased or received on or prior to such day or in respect of
Petroleum Products Borrower or Plains Marketing Canada, L.P. is then obligated
to purchase or receive or has then nominated to purchase or receive.
"Partnership Agreement" means the Second Amended and Restated Agreement
of Limited Partnership of Plains MLP dated November 23, 1998.
23
"Percentage Share" means, with respect to any Lender (a) when used in
Sections 2.1, 2.2 or 2.12, in any Borrowing Notice or when no Loans are
outstanding hereunder, the percentage set forth opposite such Lender's name on
the Lender Schedule hereto, as may be amended pursuant to Section 2.14(c), and
(b) when used otherwise, the percentage obtained by dividing (i) the sum of the
unpaid principal balance of such Lender's Loans at the time in question plus the
Matured LC Obligations which such Lender has funded pursuant to Section 2.9(c)
plus the portion of the Maximum Drawing Amount which such Lender might be
obligated to fund under Section 2.9(c), by (ii) the sum of the aggregate unpaid
principal balance of all Loans at such time plus the aggregate amount of LC
Obligations outstanding at such time.
"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.
"Permitted Inventory Liens" means any Lien, and the amount of any
Liability secured thereby, on Petroleum Products inventory which would be a
Permitted Lien under Section 7.2(ii)(b) (so long as such Lien is inchoate) or
Section 7.2(ii)(d).
"Permitted Investments" means:
(a) Cash Equivalents,
(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,
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(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)(B),
(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 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 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 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
25
(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.
"Permitted Lien" has the meaning given to such term in Section 7.2.
"Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, trust or trustee thereof,
estate or executor thereof, unincorporated organization or joint venture,
Tribunal, or any other legally recognizable entity.
"Petroleum Products" means crude oil, condensate, natural gas liquids
(NGL's), liquefied petroleum gases (LPG's) or any blend thereof.
"Plains MLP" means Plains All American Pipeline, L.P., a Delaware
limited partnership.
"Plains Newco LLC" means a Delaware limited liability company or other
entity that is wholly-owned, directly or indirectly, by Plains MLP that is or
may become the general partner of US Borrower and All American.
"Plains Terminal" means any storage terminal, tankage or facility owned
by any Restricted Person.
"Private/Public Debt Issuance Date" means the issue date of
Indebtedness described in Section 7.1(g) in an aggregate amount not less than
$150,000,000.
"Rating Agency" means either S&P or Moody's.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect.
"Resources" means Plains Resources Inc., a Delaware corporation.
"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.
"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.
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"Revolver Agreement" means that certain Second Amended and Restated
Credit Agreement [Revolving Credit Facility] of even date herewith among
Borrower, All American and Plains MLP, as guarantors, and the agents and lenders
named therein, providing for a $450,000,000 revolving credit facility for
Borrower, a $100,000,000 term loan to PMC (Nova Scotia) Company, a $30,000,000
revolving credit facility for Plains Marketing Canada, L.P., and a $200,000,000
Term-B loan to Borrower.
"Revolver Availability" means for any day, the unutilized portion
available on such day of the "Total Revolver Commitment" (as defined in Section
7.11 of the Revolver Agreement) for revolving credit loans to Borrower pursuant
to the Revolver Agreement.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw Hill,
Inc.) or its successor.
"Secured Debt Coverage Ratio" shall have the meaning given that term in
Section 7.12.
"Security Documents" means the instruments listed in the Security
Schedule and all other security agreements, deeds of trust, mortgages, chattel
mortgages, pledges, guaranties, financing statements, continuation statements,
extension agreements and other agreements or instruments now, heretofore, or
hereafter delivered by any Restricted Person to Administrative Agent in
connection with this Agreement or any transaction contemplated hereby to secure
or guarantee the payment of any part of the Obligations or the performance of
any Restricted Person's other duties and obligations under the Loan Documents.
"Security Schedule" means Schedule 3 hereto.
"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, 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 7.17.
"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (i) a reportable event described in Sections 4043(c)(5) or (6) of ERISA
or (ii) any other reportable event described in Section 4043(c) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA, or (b) the withdrawal of any ERISA Affiliate
from an ERISA Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of
intent to terminate any ERISA Plan or the treatment of any ERISA Plan amendment
as a termination under Section 4041 of ERISA, or (d) the institution of
proceedings to terminate any ERISA Plan by the Pension Benefit Guaranty
Corporation under Section 4042 of ERISA, or (e) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any ERISA Plan.
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"Tribunal" means any government, any arbitration panel, any court or
any governmental department, commission, board, bureau, agency or
instrumentality of the United States of America, the Dominion of Canada, any
state, province, commonwealth, nation, territory, possession, county, parish,
town, township, village or municipality, whether now or hereafter constituted or
existing.
"Type" means, with respect to any Loans, the characterization of such
Loans as either Base Rate Loans or LIBOR Loans.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"Unrestricted Subsidiary" shall have the meaning given it in Section
7.17.
"Wholly Owned Subsidiary" means any Subsidiary of a Person, all of the
issued and outstanding stock, limited liability company membership interests, or
partnership interests of which (including all rights or options to acquire such
stock or interests) are directly or indirectly (through one or more
Subsidiaries) owned by such Person.
Section 1.2. Exhibits and Schedules; Additional Definitions. All
Exhibits and Schedules attached to this Agreement are a part hereof for all
purposes. Reference is hereby made to the Security Schedule for the meaning of
certain terms defined therein and used but not defined herein, which definitions
are incorporated herein by reference.
Section 1.3. Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein the terms defined in this
Agreement which refer to a particular agreement, instrument or document also
refer to and include all renewals, extensions, modifications, amendments and
restatements of such agreement, instrument or document, provided that nothing
contained in this section shall be construed to authorize any such renewal,
extension, modification, amendment or restatement. All references to the term
"Revolver Agreement" shall be deemed to be references to such agreement as such
agreement is executed and delivered by the parties thereto on the date hereof.
Section 1.4. References and Titles. All references in this Agreement to
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement," "this instrument," "herein," "hereof," "hereby," "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The phrases "this section"
and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires. References
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to an "officer" or "officers" of the General Partner or any Restricted Person
shall mean and include officers of such Person or the controlling management
entity of such Person as provided in such Person's organizational documents, as
applicable.
Section 1.5. Calculations and Determinations. All calculations under
the Loan Documents of interest chargeable with respect to LIBOR Loans and of
fees shall be made on the basis of actual days elapsed (including the first day
but excluding the last) and a year of 360 days. All other calculations of
interest made under the Loan Documents shall be made on the basis of actual days
elapsed (including the first day but excluding the last) and a year of 365 or
366 days, as appropriate. Each determination by a Lender Party of amounts to be
paid under Article III or any other matters which are to be determined hereunder
by a Lender Party (such as any LIBOR Rate, Business Day, Interest Period, or
Reserve Percentage) shall, in the absence of manifest error, be conclusive and
binding. Unless otherwise expressly provided herein or unless Majority Lenders
otherwise consent all financial statements and reports furnished to any Lender
Party hereunder shall be prepared and all financial computations and
determinations pursuant hereto shall be made in accordance with GAAP.
ARTICLE II - The Loans and Letters of Credit
Section 2.1. Commitments to Lend; Notes. Subject to the terms and
conditions hereof, each Lender agrees to make loans to Borrower (herein called
such Lender's "Loans") upon Borrower's request from time to time during the
Commitment Period, provided that (a) subject to Sections 3.3, 3.4 and 3.6, all
Lenders are requested to make Loans of the same Type in accordance with their
respective Percentage Shares and as part of the same Borrowing, and (b) after
giving effect to such Loans, the Dollar Equivalent of the Facility Usage does
not exceed the lesser of (i) the Maximum Facility Amount and (ii) the Borrowing
Base determined as of the date on which the requested Loans are to be made. The
aggregate amount of all Loans in any Borrowing must be equal to $2,000,000 or
any higher integral multiple of $250,000. Borrower may have no more than five
Borrowings of LIBOR Loans outstanding at any time. The obligation of Borrower to
repay to each Lender the aggregate amount of all Loans made by such Lender,
together with interest accruing in connection therewith, shall be evidenced by a
single promissory note (herein called such Lender's "Note") made by Borrower
payable to the order of such Lender in the form of Exhibit A with appropriate
insertions. The amount of principal owing on any Lender's Note at any given time
shall be the aggregate amount of all Loans theretofore made by such Lender minus
all payments of principal theretofore received by such Lender on such Note.
Interest on each Note shall accrue and be due and payable as provided herein and
therein. Each Note shall be due and payable as provided herein and therein, and
shall be due and payable in full on the last day of the Commitment Period.
Subject to the terms and conditions of this Agreement, Borrower may borrow,
repay, and reborrow hereunder.
Section 2.2. Requests for New Loans. Borrower must give to
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of any requested Borrowing of Loans to be funded by Lenders. Each such
notice constitutes a "Borrowing Notice" hereunder and must:
29
(a) specify (i) the aggregate amount of any such Borrowing of
Base Rate Loans and the date on which such Base Rate Loans are to be
advanced, or (ii) the aggregate amount of any such Borrowing of LIBOR
Loans, the date on which such LIBOR Loans are to be advanced (which
shall be the first day of the Interest Period which is to apply
thereto), and the length of the applicable Interest Period; and
(b) be received by Administrative Agent not later than 11:00
a.m., Boston, Massachusetts time, on (i) the day on which any such Base
Rate Loans are to be made, or (ii) the third Business Day preceding the
day on which any such LIBOR Loans are to be made.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by Borrower as to the matters which are required to
be set out in such written confirmation. Upon receipt of any such Borrowing
Notice, Administrative Agent shall give each Lender prompt notice of the terms
thereof. If all conditions precedent to such new Loans have been met, each
Lender will on the date requested promptly remit to Administrative Agent at
Administrative Agent's office in Boston, Massachusetts the amount of such
Lender's Loan in immediately available funds, and upon receipt of such funds,
unless to its actual knowledge any conditions precedent to such Loans have been
neither met nor waived as provided herein, Administrative Agent shall promptly
make such Loans available to Borrower. Unless Administrative Agent shall have
received prompt notice from a Lender that such Lender will not make available to
Administrative Agent such Lender's new Loan, Administrative Agent may in its
discretion assume that such Lender has made such Loan available to
Administrative Agent in accordance with this section and Administrative Agent
may if it chooses, in reliance upon such assumption, make such Loan available to
Borrower. If and to the extent such Lender shall not so make its new Loan
available to Administrative Agent, such Lender and Borrower severally agree to
pay or repay to Administrative Agent within three days after demand the amount
of such Loan together with interest thereon, for each day from the date such
amount was made available to Borrower until the date such amount is paid or
repaid to Administrative Agent, with interest at (i) the Federal Funds Rate, if
such Lender is making such payment and (ii) the interest rate applicable at the
time to the other new Loans made on such date, if Borrower is making such
repayment. If neither such Lender nor Borrower pays or repays to Administrative
Agent such amount within such three-day period, Administrative Agent shall be
entitled to recover from Borrower, on demand, in lieu of the interest provided
for in the preceding sentence, interest thereon at the Default Rate, calculated
from the date such amount was made available to Borrower. The failure of any
Lender to make any new Loan to be made by it hereunder shall not relieve any
other Lender of its obligation hereunder, if any, to make its new Loan, but no
Lender shall be responsible for the failure of any other Lender to make any new
Loan to be made by such other Lender.
Section 2.3. Continuations and Conversions of Existing Loans. Borrower
may make the following elections with respect to Loans already outstanding: to
Convert, in whole or in part, Base Rate Loans to LIBOR Loans, to Convert, in
whole or in part, LIBOR Loans to Base Rate Loans on the last day of the Interest
Period applicable thereto, and to Continue, in whole or in
30
part, LIBOR Loans beyond the expiration of such Interest Period by designating a
new Interest Period to take effect at the time of such expiration. In making
such elections, Borrower may combine existing Loans made pursuant to separate
Borrowings into one new Borrowing or divide existing Loans made pursuant to one
Borrowing into separate new Borrowings, provided that Borrower may have no more
than five Borrowings of LIBOR Loans outstanding at any time. To make any such
election, Borrower must give to Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of any such Conversion or
Continuation of existing Loans, with a separate notice given for each new
Borrowing. Each such notice constitutes a "Continuation/Conversion Notice"
hereunder and must:
(a) specify the existing Loans which are to be Continued or
Converted;
(b) specify (i) the aggregate amount of any Borrowing of Base
Rate Loans into which such existing Loans are to be Continued or
Converted and the date on which such Continuation or Conversion is to
occur, or (ii) the aggregate amount of any Borrowing of LIBOR Loans
into which such existing Loans are to be Continued or Converted, the
date on which such Continuation or Conversion is to occur (which shall
be the first day of the Interest Period which is to apply to such LIBOR
Loans), and the length of the applicable Interest Period; and
(c) be received by Administrative Agent not later than 11:00
a.m., Boston, Massachusetts time, on (i) the day on which any such
Continuation or Conversion to Base Rate Loans is to occur, or (ii) the
third Business Day preceding the day on which any such Continuation or
Conversion to LIBOR Loans is to occur.
Each such written request or confirmation must be made in the form and substance
of the "Continuation/Conversion Notice" attached hereto as Exhibit C, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by Borrower as to the matters which are
required to be set out in such written confirmation. Upon receipt of any such
Continuation/Conversion Notice, Administrative Agent shall give each Lender
prompt notice of the terms thereof. Each Continuation/Conversion Notice shall be
irrevocable and binding on Borrower. During the continuance of any Default,
Borrower may not make any election to Convert existing Loans into LIBOR Loans or
Continue existing Loans as LIBOR Loans beyond the expiration of their respective
and corresponding Interest Period then in effect. If (due to the existence of a
Default or for any other reason) Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing LIBOR
Loans at least three days prior to the end of the Interest Period applicable
thereto, such LIBOR Loans, to the extent not prepaid at the end of such Interest
Period, shall automatically be Converted into Base Rate Loans at the end of such
Interest Period. No new funds shall be repaid by Borrower or advanced by any
Lender in connection with any Continuation or Conversion of existing Loans
pursuant to this section, and no such Continuation or Conversion shall be deemed
to be a new advance of funds for any purpose; such Continuations and Conversions
merely constitute a change in the interest rate applicable to already
outstanding Loans.
Section 2.4. Use of Proceeds. Borrower shall use the proceeds of all
Loans to finance Cash and Carry Purchases, as margin deposits not to exceed
$50,000,000 in the aggregate at any
31
time outstanding with respect to Hedging Contracts as permitted pursuant to
Section 7.2(e) and to refinance Matured LC Obligations. Borrower and, with
respect to Canadian Letters of Credit, Borrower or Plains Marketing Canada,
L.P., as the case may be, shall use all Letters of Credit solely for the
purposes specified in Section 2.7(d). In no event shall any Loan or any Letter
of Credit be used (i) to fund distributions by Plains MLP, (ii) directly or
indirectly by any Person for personal, family, household or agricultural
purposes, (iii) for the purpose, whether immediate, incidental or ultimate, of
purchasing, acquiring or carrying any "margin stock" (as such term is defined in
Regulation U promulgated by the Board of Governors of the Federal Reserve
System) or (iv) to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock. Borrower represents and
warrants that Borrower is not engaged principally, or as one of Borrower's
important activities, in the business of extending credit to others for the
purpose of purchasing or carrying such margin stock.
Section 2.5. Optional Prepayments of Loans. Borrower may, upon five
Business Days' notice to Administrative Agent (and Administrative Agent will
promptly give notice to the other Lenders), from time to time and without
premium or penalty prepay the Loans, in whole or in part, so long as the
aggregate amounts of all partial prepayments of principal on the Loans equals
$2,000,000 or any higher integral multiple of $250,000. Each prepayment of
principal under this section shall be accompanied by all interest then accrued
and unpaid on the principal so prepaid. Any principal or interest prepaid
pursuant to this section shall be in addition to, and not in lieu of, all
payments otherwise required to be paid under the Loan Documents at the time of
such prepayment.
Section 2.6. Mandatory Prepayments. If at any time the Dollar
Equivalent of the Facility Usage exceeds the Borrowing Base (whether due to a
reduction in the Borrowing Base in accordance with this Agreement, or
otherwise), Borrower shall immediately upon demand prepay the principal of the
Loans in an amount at least equal to such excess. If at any time the outstanding
principal balance of the Loans exceed the sum of (i) Hedged Eligible Inventory
plus (ii) the outstanding amount of Accounts resulting from the sale of such
Hedged Eligible Inventory (without duplication), Borrower shall within one
Business Day prepay the principal of the Loans in an amount at least equal to
such excess. Each prepayment of principal under this section shall be
accompanied by all interest then accrued and unpaid on the principal so prepaid.
Any principal or interest prepaid pursuant to this section shall be in addition
to, and not in lieu of, all payments otherwise required to be paid under the
Loan Documents at the time of such prepayment.
Section 2.7. Letters of Credit. Subject to the terms and conditions
hereof, Borrower and, with respect to Canadian Letters of Credit, Borrower or
Plains Marketing Canada, L.P., may during the Commitment Period request LC
Issuer to issue, amend, or extend the expiration date of, one or more Letters of
Credit, provided that:
(a after taking such Letter of Credit into account, the Dollar
Equivalent of the Facility Usage does not exceed the lesser of (i) the
Maximum Facility Amount at such time or (ii) the Borrowing Base at such
time;
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(b the expiration date of such Letter of Credit is prior to
the earlier of (i) (A) 70 days, (B) 180 days, if the beneficiary
thereof is Exxon Mobil Company, or (C) one year, if the beneficiary
thereof is only the United States Mineral Management Service or other
federal or state governmental agency regulating Petroleum Products
purchases, after the date of issuance of such Letter of Credit, and
(ii) 30 days prior to the end of the Commitment Period;
(c the issuance of such Letter of Credit will be in compliance
with all applicable governmental restrictions, policies, and guidelines
and will not subject LC Issuer to any cost which is not reimbursable
under Article III;
(d such Letter of Credit is related to the purchase or
exchange by Borrower or, with respect to any purchase or exchange in
Canada, by Borrower or by Plains Marketing Canada, L.P., of Petroleum
Products and is in the form of Exhibit D hereto or such other form and
terms as shall be acceptable to LC Issuer in its sole and absolute
discretion and Currently Approved by Majority Lenders, and, if the
beneficiary thereof is the United States Mineral Management Service,
after taking such Letter of Credit into account, the aggregate amount
of LC Obligations in respect to all Letters of Credit naming the United
States Mineral Management Service as beneficiary does not exceed
$5,000,000;
(e if such Letter of Credit is a Canadian Letter of Credit,
after taking such Canadian Letter of Credit into account, the Dollar
Equivalent of the aggregate amount of LC Obligations at such time
relating to Canadian Letters of Credit does not exceed (1) $50,000,000
prior to the Murphy Acquisition Closing Date, (2) $80,000,000 during
the four-month period commencing with the Murphy Acquisition Closing
Date, and (3) $50,000,000 thereafter; and
(f all other conditions in this Agreement to the issuance of
such Letter of Credit have been satisfied.
LC Issuer will honor any such request if the foregoing conditions (a) through
(f) (in the following Section 2.8 called the "LC Conditions") have been met as
of the date of issuance, amendment, or extension of such Letter of Credit. The
outstanding letters of credit issued by LC Issuer under the Existing Agreement
shall be deemed to be Letters of Credit issued hereunder; Borrower hereby
represents and warrants that the LC Conditions have been met as of the date
hereof with respect to each such Letter of Credit. Borrower or Plains Marketing
Canada, L.P., as the case may be, may request that any Canadian Letter of Credit
be issued in Dollars or in Canadian Dollars, and, subject to the terms and
conditions hereof, LC Issuer will honor such request.
Section 2.8. Requesting Letters of Credit. Borrower or Plains Marketing
Canada, L.P., as the case may be, must make written application for any Letter
of Credit at least one Business Day before the date on which Borrower or Plains
Marketing Canada, L.P., as the case may be, desires for LC Issuer to issue such
Letter of Credit. By making any such written application, unless otherwise
expressly stated therein, Borrower or Plains Marketing Canada, L.P., as the case
may be, shall be deemed to have represented and warranted that the LC Conditions
described in Section 2.7 will be met as of the date of issuance of such Letter
of Credit. Each such written
33
application for a Letter of Credit must be made in writing in the form and
substance of Exhibit E, the terms and provisions of which are hereby
incorporated herein by reference (or in such other form as may mutually be
agreed upon by LC Issuer and Borrower or Plains Marketing Canada, L.P., as the
case may be). If all LC Conditions for a Letter of Credit have been met as
described in Section 2.7 on any Business Day before 11:00 a.m, Boston,
Massachusetts time, LC Issuer will issue such Letter of Credit on the same
Business Day at LC Issuer's office in Boston, Massachusetts. If the LC
Conditions are met as described in Section 2.7 on any Business Day on or after
11:00 a.m, Boston, Massachusetts time, LC Issuer will issue such Letter of
Credit on the next succeeding Business Day at LC Issuer's office in Boston,
Massachusetts. If any provisions of any LC Application conflict with any
provisions of this Agreement, the provisions of this Agreement shall govern and
control.
Section 2.9. Reimbursement and Participations.
(a Reimbursement. Each Matured LC Obligation shall constitute a loan by
LC Issuer to Borrower or Plains Marketing Canada, L.P., as the case may be.
Borrower promises to pay to LC Issuer, or to LC Issuer's order, on demand, the
full amount of each Matured LC Obligation (which, in the case of any Letter of
Credit issued in Canadian Dollars, shall as demanded by LC Issuer be payable in
Canadian Dollars or in an amount equal to the equivalent in Dollars of such
amount of Canadian Dollars determined by LC Issuer in accordance with its normal
procedures and after deducting any premium and costs of exchange), including
without limitation all Matured LC Obligations with respect to Canadian Letters
of Credit issued at the request of Plains Marketing Canada, L.P., together with
interest thereon (i) at the Base Rate to and including the second Business Day
after the Matured LC Obligation is incurred and (ii) at the Default Rate on each
day thereafter. In addition, and notwithstanding the foregoing, Plains Marketing
Canada, L.P., pursuant to each LC Application executed by it, shall be obligated
to pay to LC Issuer, or to LC Issuer's order, on demand, the full amount of each
Matured LC Obligation with respect to Canadian Letters of Credit requested by it
(which, in the case of any Letter of Credit issued in Canadian Dollars, shall as
demanded by LC Issuer be payable in Canadian Dollars or in an amount equal to
the equivalent in Dollars of such amount of Canadian Dollars determined by LC
Issuer in accordance with its normal procedures and after deducting any premium
and costs of exchange), together with interest thereon as set forth in the
foregoing sentence (such obligation and Borrower's obligation set forth in the
foregoing sentence with respect to such Canadian Letters of Credit to be joint
and several). Any such reimbursement made by Plains Marketing Canada, L.P.
shall, pursuant to Section 3.7(b) hereof, include all such additional amounts as
are needed to cause the amount received by LC Issuer, after any deduction or
withholding as may be required pursuant to the Income Tax Act (Canada) or other
applicable Canadian Laws, to equal the amount which would have been receivable
in the absence of such deduction or withholding.
(b Letter of Credit Advances. If the beneficiary of any Letter of
Credit makes a draft or other demand for payment thereunder then Borrower may,
during the interval between the making thereof and the honoring thereof by LC
Issuer, request Lenders to make Loans to Borrower in the amount of such draft or
demand, which Loans shall be made concurrently with LC Issuer's payment of such
draft or demand and shall be immediately used by LC Issuer to repay the amount
of the resulting Matured LC Obligation. Such a request by Borrower shall be made
in compliance with all of the provisions hereof, provided that for the purposes
of the first
34
sentence of Section 2.1, the amount of such Loans shall be considered, but the
amount of the Matured LC Obligation to be concurrently paid by such Loans shall
not be considered.
(c Participation by Lenders. LC Issuer irrevocably agrees to grant and
hereby grants to each Lender, and -- to induce LC Issuer to issue Letters of
Credit hereunder -- each Lender irrevocably agrees to accept and purchase and
hereby accepts and purchases from LC Issuer, on the terms and conditions
hereinafter stated and for such Lender's own account and risk an undivided
interest equal to such Lender's Percentage Share of LC Issuer's obligations and
rights under each Letter of Credit issued hereunder and the amount of each
Matured LC Obligation paid by LC Issuer thereunder. Each Lender unconditionally
and irrevocably agrees with LC Issuer that, if a Matured LC Obligation is paid
under any Letter of Credit for which LC Issuer is not reimbursed in full by
Borrower or, with respect to Canadian Letters of Credit requested by Plains
Marketing Canada, L.P., by either Borrower or Plains Marketing Canada, L.P. in
accordance with the terms of this Agreement and the related LC Application
(including any reimbursement by means of concurrent Loans or by the application
of LC Collateral), such Lender shall (in all circumstances and without set-off
or counterclaim) pay to LC Issuer on demand, in immediately available funds at
LC Issuer's address for notices hereunder, such Lender's Percentage Share of
such Matured LC Obligation (or any portion thereof which has not been reimbursed
by Borrower or, with respect to Canadian Letters of Credit requested by Plains
Marketing Canada, L.P., by either Borrower or Plains Marketing Canada, L.P.).
Each Lender's obligation to pay LC Issuer pursuant to the terms of this
subsection is irrevocable and unconditional. If any amount required to be paid
by any Lender to LC Issuer pursuant to this subsection is paid by such Lender to
LC Issuer within three Business Days after the date such payment is due, LC
Issuer shall in addition to such amount be entitled to recover from such Lender,
on demand, interest thereon calculated from such due date at the Federal Funds
Rate. If any amount required to be paid by any Lender to LC Issuer pursuant to
this subsection is not paid by such Lender to LC Issuer within three Business
Days after the date such payment is due, LC Issuer shall in addition to such
amount be entitled to recover from such Lender, on demand, interest thereon
calculated from such due date at the Base Rate.
(d Distributions to Participants. Whenever LC Issuer has in accordance
with this section received from any Lender payment of such Lender's Percentage
Share of any Matured LC Obligation, if LC Issuer thereafter receives any payment
of such Matured LC Obligation or any payment of interest thereon (whether
directly from Borrower or, with respect to Canadian Letters of Credit requested
by Plains Marketing Canada, L.P., by either Borrower or Plains Marketing Canada,
L.P. or by application of LC Collateral or otherwise, and excluding only
interest for any period prior to LC Issuer's demand that such Lender make such
payment of its Percentage Share), LC Issuer will distribute to such Lender its
Percentage Share of the amounts so received by LC Issuer; provided, however,
that if any such payment received by LC Issuer must thereafter be returned by LC
Issuer, such Lender shall return to LC Issuer the portion thereof which LC
Issuer has previously distributed to it.
(e Calculations. A written advice setting forth in reasonable detail
the amounts owing under this section, submitted by LC Issuer to Borrower or any
Lender from time to time, shall be conclusive, absent manifest error, as to the
amounts thereof.
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Section 2.10. No Duty to Inquire.
(a Drafts and Demands. LC Issuer is authorized and instructed to
accept and pay drafts and demands for payment under any Letter of Credit without
requiring, and without responsibility for, any determination as to the existence
of any event giving rise to said draft, either at the time of acceptance or
payment or thereafter. LC Issuer is under no duty to determine the proper
identity of anyone presenting such a draft or making such a demand (whether by
tested telex or otherwise) as the officer, representative or agent of any
beneficiary under any Letter of Credit, and payment by LC Issuer to any such
beneficiary when requested by any such purported officer, representative or
agent is hereby authorized and approved. Borrower releases each Lender Party
from, and agrees to hold each Lender Party harmless and indemnified against, any
liability or claim in connection with or arising out of the subject matter of
this section, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR
CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY, provided only that no
Lender Party shall be entitled to indemnification for that portion, if any, of
any liability or claim which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment.
(b Extension of Maturity. If the maturity of any Letter of Credit is
extended by its terms or by Law or governmental action, if any extension of the
maturity or time for presentation of drafts or any other modification of the
terms of any Letter of Credit is made at the request of Borrower, or if the
amount of any Letter of Credit is increased at the request of Borrower, this
Agreement shall be binding upon all Restricted Persons with respect to such
Letter of Credit as so extended, increased or otherwise modified, with respect
to drafts and property covered thereby, and with respect to any action taken by
LC Issuer, LC Issuer's correspondents, or any Lender Party in accordance with
such extension, increase or other modification.
(c Transferees of Letters of Credit. If any Letter of Credit provides
that it is transferable, LC Issuer shall have no duty to determine the proper
identity of anyone appearing as transferee of such Letter of Credit, nor shall
LC Issuer be charged with responsibility of any nature or character for the
validity or correctness of any transfer or successive transfers, and payment by
LC Issuer to any purported transferee or transferees as determined by LC Issuer
is hereby authorized and approved, and Borrower releases each Lender Party from,
and agrees to hold each Lender Party harmless and indemnified against, any
liability or claim in connection with or arising out of the foregoing, WHICH
INDEMNITY SHALL APPLY WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY
OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION
OF ANY KIND BY ANY LENDER PARTY, provided only that no Lender Party shall be
entitled to indemnification for that portion, if any, of any liability or claim
which is proximately caused by its own individual gross negligence or willful
misconduct, as determined in a final judgment.
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Section 2.11. LC Collateral.
(a LC Obligations in Excess of Borrowing Base. If, after the making of
all mandatory prepayments required under Section 2.6, the Dollar Equivalent of
outstanding LC Obligations will exceed the Borrowing Base, then in addition to
prepayment of the entire principal balance of the Loans Borrower will
immediately pay to LC Issuer an amount equal to such excess. LC Issuer will hold
such amount as collateral security for the remaining LC Obligations (all such
amounts held as collateral security for LC Obligations being herein collectively
called "LC Collateral") and the other Obligations, and such collateral may be
applied from time to time to pay Matured LC Obligations or any other Obligations
which are then due and payable. Neither this subsection nor the following
subsection shall, however, limit or impair any rights which LC Issuer may have
under any other document or agreement relating to any Letter of Credit, LC
Collateral or LC Obligation, including any LC Application, or any rights which
any Lender Party may have to otherwise apply any payments by Borrower and any LC
Collateral under Section 3.1.
(b Acceleration of LC Obligations. If the Obligations or any part
thereof become immediately due and payable pursuant to Section 8.1 then, unless
all Lenders otherwise specifically elect to the contrary (which election may
thereafter be retracted by all Lenders at any time), all LC Obligations shall
become immediately due and payable without regard to whether or not actual
drawings or payments on the Letters of Credit have occurred, and Borrower shall
be obligated to pay to LC Issuer immediately an amount equal to the aggregate
Dollar Equivalent of LC Obligations which are then outstanding to be held as LC
Collateral.
(c Investment of LC Collateral. Pending application thereof, all LC
Collateral shall be invested by LC Issuer in such Cash Equivalents as LC Issuer
may choose in its sole discretion. All interest on (and other proceeds of) such
Investments shall be reinvested or applied to Matured LC Obligations or other
Obligations which are due and payable. When all Obligations have been satisfied
in full, including all LC Obligations, all Letters of Credit have expired or
been terminated, and all of Borrower's reimbursement obligations in connection
therewith have been satisfied in full, LC Issuer shall release any remaining LC
Collateral. Borrower hereby assigns and grants to LC Issuer for the benefit of
Lenders a continuing security interest in all LC Collateral paid by it to LC
Issuer, all Investments purchased with such LC Collateral, and all proceeds
thereof to secure its Matured LC Obligations and its Obligations under this
Agreement, each Note, and the other Loan Documents, and Borrower agrees that
such LC Collateral, Investments and proceeds shall be subject to all of the
terms and conditions of the Security Documents. Borrower further agrees that LC
Issuer shall have all of the rights and remedies of a secured party under the
UCC with respect to such security interest and that an Event of Default under
this Agreement shall constitute a default for purposes of such security
interest.
(d Payment of LC Collateral. When Borrower is required to provide LC
Collateral for any reason and fails to do so on the day when required, LC Issuer
or Administrative Agent may without prior notice to Borrower or any other
Restricted Person provide such LC Collateral (whether by application of proceeds
of other Collateral, by transfers from other accounts maintained with LC Issuer,
or otherwise) using any available funds of Borrower or any other Person also
liable to make such payments, and LC Issuer or Administrative Agent will give
notice thereof to Borrower promptly after such application or transfer. Any such
amounts which
37
are required to be provided as LC Collateral and which are not provided on the
date required shall, for purposes of each Security Document, be considered past
due Obligations owing hereunder, and LC Issuer is hereby authorized to exercise
its respective rights under each Security Document to obtain such amounts.
Section 2.12. Interest Rates and Fees; Reduction in Commitment.
(a Interest Rates. Unless the Default Rate shall apply, (i) each Base
Rate Loan shall bear interest on each day outstanding at the Base Rate plus the
Base Rate Margin in effect on such day and (ii) each LIBOR Loan shall bear
interest on each day during the related Interest Period at the related LIBOR
Rate plus the LIBOR Rate Margin in effect on such day. During a Default Rate
Period, all Loans shall bear interest on each day outstanding at the applicable
Default Rate. If an Event of Default based upon Section 8.1(a), Section 8.1(b)
or, with respect to Borrower, based upon Section 8.1(i)(i), (i)(ii) or (i)(iii)
exists and the Loans are not bearing interest at the Default Rate, the past due
principal and past due interest shall bear interest on each day outstanding at
the applicable Default Rate. The interest rate shall change whenever the
applicable Base Rate, the Base Rate Margin, the LIBOR Rate or the LIBOR Rate
Margin changes. In no event shall the interest rate on any Loan exceed the
Highest Lawful Rate.
(b Commitment Fees. In consideration of each Lender's commitment to
make Loans, Borrower will pay to Administrative Agent for the account of each
Lender a commitment fee determined on a daily basis equal to the Commitment Fee
Rate in effect on such day times such Lender's Percentage Share of the unused
portion of the Maximum Facility Amount on each day during the Commitment Period,
determined for each such day by deducting from the amount of the Maximum
Facility Amount at the end of such day the Dollar Equivalent of the Facility
Usage. This commitment fee shall be due and payable in arrears on the last day
of each Fiscal Quarter and at the end of the Commitment Period. Borrower shall
have the right from time to time to permanently reduce the Maximum Facility
Amount, provided that (i) notice of such reduction is given not less than 2
Business Days prior to such reduction, (ii) the resulting Maximum Facility
Amount is not less than the Dollar Equivalent of the Facility Usage, and (iii)
each partial reduction shall be in an amount at least equal to $500,000 and in
multiples of $100,000 in excess thereof.
(c Letter of Credit Fees. In consideration of LC Issuer's issuance of
any Letter of Credit, Borrower agrees to pay (i) to Administrative Agent, for
the account of all Lenders in accordance with their respective Percentage
Shares, a letter of credit fee equal to the Letter of Credit Fee Rate applicable
each day times the Dollar Equivalent of the face amount of such Letter of Credit
and (ii) to such LC Issuer for its own account, a letter of credit fronting fee
at a rate equal to one-eighth percent (0.125%) per annum times the Dollar
Equivalent of the face amount of such Letter of Credit. Each such fee will be
calculated on the face amount of each Letter of Credit outstanding on each day
at the above applicable rates and will be payable monthly in arrears on the last
day of each month. In addition, Borrower will pay to LC Issuer a minimum
administrative issuance fee and such other fees and charges customarily charged
by the LC Issuer in respect of any issuance, amendment or negotiation of any
Letter of Credit in accordance with the LC Issuer's published schedule of such
charges effective as of the date of such amendment or negotiation. In addition,
in the event any Canadian Letter of Credit shall at the request of
38
Borrower or Plains Marketing Canada, L.P., as the case may be, be issued
pursuant to an LC Issuer's Canadian office, Borrower will pay a minimum fee for
such service as customarily charged by such LC Issuer. In addition, and
notwithstanding the foregoing, Plains Marketing Canada, L.P., pursuant to each
LC Application executed by it, shall with respect to Canadian Letters of Credit
requested by it agree to pay such letter of credit fees as set forth in this
Section 2.12(c) (such obligation and Borrower's obligation set forth in this
Section 2.12(c) with respect to such Canadian Letters of Credit to be joint and
several). Any such payment of letter of credit fees made by Plains Marketing
Canada, L.P. shall, pursuant to Section 3.7(b) hereof, include all such
additional amounts as are needed to cause the amount received by Administrative
Agent and LC Issuer, in each case, after any deduction or withholding as may be
required pursuant to the Income Tax Act (Canada) or other applicable Canadian
Laws, to equal the amount which would have been receivable in the absence of
such deduction or withholding.
(d Administrative Agent's Fees. In addition to all other amounts due
to Administrative Agent under the Loan Documents, Borrower will pay fees to
Administrative Agent as described in a letter agreement of even date herewith
between Administrative Agent and Borrower.
Section 2.13. Borrowing Base Reporting. The Borrowing Base Reports are
subject to the procedures set forth on Schedule 6.
Section 2.14. Increase of Maximum Facility Amount and Aggregate
Commitments. (a) So long as no Default or Event of Default has occurred and is
continuing, Borrower may from time to time (i) upon notice to Administrative
Agent and, at Borrower's election, one or more Lenders request that such Lenders
increase their commitments under this credit facility and the Maximum Facility
Amount, and/or (ii) by invitation to one or more Persons consented to by
Administrative Agent, which consent will not be unreasonably withheld, invite
such Persons to become Lenders, so as to increase the aggregate commitments
under this credit facility and the Maximum Facility Amount to an amount not to
exceed $350,000,000. At the time of such notice or invitation, as the case may
be, Borrower (in consultation with, and in cooperation with, Administrative
Agent) shall specify the time period within which each such Lender or invitee,
as applicable, is requested to respond (which shall in no event be less than
five (5) Business Days from the date of such notice or invitation). Upon any
such request to one or more Lenders, each such Lender shall notify
Administrative Agent within the time specified whether or not such Lender agrees
to increase its commitment hereunder and, if so, the amount of such increase.
Any such Lender failing to respond within the time specified shall be deemed to
have declined to increase its commitment. Notwithstanding anything contained
herein, no Lender shall have any obligation whatsoever to increase its
commitment above the amount set forth on such Lender's Lender Schedule.
(b) Upon any increase in the Maximum Facility Amount, whether by an
increase by one or more Lenders of their commitments hereunder (each an
"Increasing Lender") or by the addition of one or more new lenders electing to
join this credit facility as a Lender (each a "New Lender") pursuant to clause
(a) above, Administrative Agent and Borrower shall determine the effective date
of such increase and shall promptly notify Lenders and New Lenders, if any, of
the final allocation of such increase and the effective date thereof. Such
increase shall become effective as of such effective date upon receipt by
Administrative Agent, at Administrative
39
Agent's office, of all of the following, each dated as of such effective date:
(i) a certificate of Borrower regarding satisfaction of Section 4.2, (ii) a
consent to such increase, in form and substance reasonably acceptable to
Administrative Agent, executed and delivered by each Guarantor, (iii) a
certificate of Borrower and each Guarantor dated as of such effective date
certifying and attaching resolutions adopted by Borrower or such Guarantor
approving or consenting to such increase, (iv) with respect to any Increasing
Lender, a Commitment Increase Supplement, substantially in the form of Exhibit
L-1, executed and delivered by such Increasing Lender, and a replacement Note
executed and delivered by Borrower reflecting such Increasing Lender's increased
commitment, and (v) with respect to any New Lender, a New Lender Supplement,
substantially in the form of Exhibit L-2, executed and delivered by such New
Lender, and a new Note executed and delivered by Borrower reflecting such New
Lender's commitment.
(c) Upon the effectiveness of any such increase, each Increasing
Lender shall be bound by and entitled to the rights and benefits of this
Agreement and the other Loan Documents with respect to the full amount of its
commitment as so increased, and each New Lender shall become a Lender for all
purposes and to the same extent as if an original Lender a party hereto and
shall be bound by and entitled to the rights and benefits fo this Agreement and
the other Loan Documents with respect to its commitment. Administrative Agent
shall distribute to Borrower and each Lender an amended Lender Schedule (which
shall be deemed incorporated into this Agreement) reflecting any changes in any
Lender's commitment or Percentage Share resulting from such increase. In the
event any Loans shall remain outstanding as of the effective date of any such
increase in the Maximum Facility Amount and aggregate Lender commitments,
Borrower shall prepay any Loans or portions thereof (and any amounts due under
Section 3.6 in connection with any such prepayment) or make additional
borrowings so that, after giving effect thereto, such outstanding Loans are held
pro rata based on each Lender's revised Percentage Share.
40
ARTICLE III - Payments to Lenders
Section 3.1. General Procedures. Borrower will make each payment which
it owes under the Loan Documents to Administrative Agent for the account of the
Lender Party to whom such payment is owed in lawful money of the United States
of America, (unless otherwise expressly provided in this Agreement), without
set-off, deduction or counterclaim, and in immediately available funds. Each
such payment must be received by Administrative Agent not later than noon,
Boston, Massachusetts time, on the date such payment becomes due and payable.
Any payment received by Administrative Agent after such time will be deemed to
have been made on the next following Business Day. Should any such payment
become due and payable on a day other than a Business Day, the maturity of such
payment shall be extended to the next succeeding Business Day, and, in the case
of a payment of principal or past due interest, interest shall accrue and be
payable thereon for the period of such extension as provided in the Loan
Document under which such payment is due. Each payment under a Loan Document
shall be due and payable at the place provided therein and, if no specific place
of payment is provided, shall be due and payable at the place of payment of
Administrative Agent's Note. When Administrative Agent collects or receives
money on account of the Obligations, Administrative Agent shall distribute all
money so collected or received, and each Lender Party shall apply all such money
so distributed, as follows:
(a first, for the payment of all Obligations which are then
due (and if such money is insufficient to pay all such Obligations,
first to any reimbursements due Administrative Agent under Section 6.9
or 10.4 and then to the partial payment of all other Obligations then
due in proportion to the amounts thereof, or as Lender Parties shall
otherwise agree);
(b then for the prepayment of amounts owing under the Loan
Documents (other than principal on the Notes) if so specified by
Borrower;
(c then for the prepayment of principal on the Notes, together
with accrued and unpaid interest on the principal so prepaid, and then
held as LC Collateral pursuant to Section 2.11(c); and
(d last, for the payment or prepayment of any other
Obligations.
All payments applied to principal or interest on any Note shall be applied first
to any interest then due and payable, then to principal then due and payable,
and last to any prepayment of principal and accrued interest thereon in
compliance with Sections 2.5 and 2.6, as applicable. All distributions of
amounts described in any of subsections (b), (c) or (d) above shall be made by
Administrative Agent pro rata to each Lender Party then owed Obligations
described in such subsection in proportion to all amounts owed to all Lender
Parties which are described in such subsection; provided that if any Lender then
owes payments to LC Issuer for the purchase of a participation under Section
2.9(c) or to Administrative Agent under Section 9.4, any amounts otherwise
distributable under this section to such Lender shall be deemed to belong to LC
Issuer or Administrative Agent, respectively, to the extent of such unpaid
payments, and Administrative Agent shall apply such amounts to make such unpaid
payments rather than distribute such amounts to such Lender. If any payment on
account of any Obligation is received in Canadian
41
Dollars, instead of Dollars as required pursuant to this section (whether
voluntarily or pursuant to an order or judgment or the enforcement thereof or
the realization of any security or the liquidation of such Restricted Person or
otherwise howsoever), such payment shall constitute a discharge of such
Obligation only to the extent of the equivalent in Dollars of such amount of
Canadian Dollars determined by Administrative Agent in accordance with its
normal procedures and after deducting any premium and costs of exchange,
determined as of the Business Day next following such receipt. If, for the
purpose of obtaining or enforcing judgment in any court in any Canadian
jurisdiction, it becomes necessary to convert any amount due in Dollars into
Canadian Dollars, then the Dollar Equivalent of such amount shall be determined
on the Business Day following the date such judgment is given, and in any event
Restricted Persons shall continue to be obligated to pay any deficiency owing to
any Lender Party. If any Lender Party receives any payment or payments on
account of the liability of any Restricted Person hereunder pursuant to any
judgment or order in Canadian Dollars, and the Dollar Equivalent of such amount
on the Business Day next following such receipt is less than the full amount of
the Obligation due immediately prior to such judgment or order, then Borrower on
demand shall indemnify and save such Lender Party harmless from and against any
loss, cost or expense arising out of or in connection with such deficiency. The
agreement of indemnity provided for in this Section 3.1 shall constitute an
obligation separate and independent from all other obligations contained in this
Agreement, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Lender Parties or any of
them from time to time, and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order.
Section 3.2. Capital Reimbursement. If either (a) the introduction or
implementation of or the compliance with or any change in or in the
interpretation of any Law, or (b) the introduction or implementation of or the
compliance with any request, directive or guideline from any central bank or
other governmental authority (whether or not having the force of Law) affects or
would affect the amount of capital required or expected to be maintained by any
Lender Party or any corporation controlling any Lender Party, then, within five
Business Days after demand by such Lender Party, Borrower will pay to
Administrative Agent for the benefit of such Lender Party, from time to time as
specified by such Lender Party, such additional amount or amounts which such
Lender Party shall determine to be appropriate to compensate such Lender Party
or any corporation controlling such Lender Party in light of such circumstances,
to the extent that such Lender Party reasonably determines that the amount of
any such capital would be increased or the rate of return on any such capital
would be reduced by or in whole or in part based on the existence of the face
amount of such Lender Party's Loans, Letters of Credit, participations in
Letters of Credit or commitments under this Agreement.
Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit. If
any applicable Law (whether now in effect or hereinafter enacted or promulgated,
including Regulation D) or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of Law):
(a shall change the basis of taxation of payments to any
Lender Party of any principal, interest, or other amounts attributable
to any LIBOR Loan or Letter of Credit or otherwise due under this
Agreement in respect of any LIBOR Loan or Letter of Credit
42
(other than taxes imposed on, or measured by, the overall net income of
such Lender Party or any Applicable Lending Office of such Lender Party
by any jurisdiction in which such Lender Party or any such Applicable
Lending Office is located); or
(b shall change, impose, modify, apply or deem applicable any
reserve, special deposit or similar requirements in respect of any
LIBOR Loan or any Letter of Credit (excluding those for which such
Lender Party is fully compensated pursuant to adjustments made in the
definition of LIBOR Rate) or against assets of, deposits with or for
the account of, or credit extended by, such Lender Party; or
(c shall impose on any Lender Party or the interbank
eurocurrency deposit market any other condition affecting any LIBOR
Loan or Letter of Credit, the result of which is to increase the cost
to any Lender Party of funding or maintaining any LIBOR Loan or of
issuing any Letter of Credit or to reduce the amount of any sum
receivable by any Lender Party in respect of any LIBOR Loan or Letter
of Credit by an amount deemed by such Lender Party to be material,
then such Lender Party shall promptly notify Administrative Agent and Borrower
in writing of the happening of such event and of the amount required to
compensate such Lender Party for such event (on an after-tax basis, taking into
account any taxes on such compensation), whereupon (i) Borrower shall, within
five Business Days after demand therefor by such Lender Party, pay such amount
to Administrative Agent for the account of such Lender Party and (ii) Borrower
may elect, by giving to Administrative Agent and such Lender Party not less than
three Business Days' notice, to Convert all (but not less than all) of any such
LIBOR Loans into Base Rate Loans.
Section 3.4. Notice; Change of Applicable Lending Office. A Lender
Party shall notify Borrower of any event occurring after the date of this
Agreement that will entitle such Lender Party to compensation under Section 3.2,
3.3 or 3.5 hereof as promptly as practicable, but in any event within 90 days,
after such Lender Party obtains actual knowledge thereof; provided, that (i) if
such Lender Party fails to give such notice within 90 days after it obtains
actual knowledge of such an event, such Lender Party shall, with respect to
compensation payable pursuant to Section 3.2, 3.3 or 3.5 in respect of any costs
resulting from such event, only be entitled to payment under Section 3.2, 3.3 or
3.5 hereof for costs incurred from and after the date 90 days prior to the date
that such Lender Party does give such notice and (ii) such Lender Party will
designate a different Applicable Lending Office for the Loans affected by such
event if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender Party, be
disadvantageous to such Lender Party, except that such Lender Party shall have
no obligation to designate an Applicable Lending Office located in the United
States of America. Each Lender Party will furnish to Borrower a certificate
setting forth the basis and amount of each request by such Lender Party for
compensation under Section 3.2, 3.3 or 3.5 hereof.
Section 3.5. Availability. If (a) any change in applicable Laws, or in
the interpretation or administration thereof of or in any jurisdiction
whatsoever, domestic or foreign, shall make it unlawful or impracticable for any
Lender Party to fund or maintain LIBOR Loans or to issue or participate in
Letters of Credit, or shall materially restrict the authority of any Lender
Party to
43
purchase or take offshore deposits of dollars (i.e., "eurodollars"), or (b) any
Lender Party determines that matching deposits appropriate to fund or maintain
any LIBOR Loan are not available to it, or (c) any Lender Party determines that
the formula for calculating the LIBOR Rate does not fairly reflect the cost to
such Lender Party of making or maintaining loans based on such rate, then, upon
notice by such Lender Party to Borrower and Administrative Agent, Borrower's
right to elect LIBOR Loans from such Lender Party (or, if applicable, to obtain
Letters of Credit) shall be suspended to the extent and for the duration of such
illegality, impracticability or restriction and all LIBOR Loans of such Lender
Party which are then outstanding or are then the subject of any Borrowing Notice
and which cannot lawfully or practicably be maintained or funded shall
immediately become or remain, or shall be funded as, Base Rate Loans of such
Lender Party. Borrower agrees to indemnify each Lender Party and hold it
harmless against all costs, expenses, claims, penalties, liabilities and damages
which may result from any such change in Law, interpretation or administration.
Such indemnification shall be on an after-tax basis, taking into account any
taxes imposed on the amounts paid as indemnity.
Section 3.6. Funding Losses. In addition to its other obligations
hereunder, Borrower will indemnify each Lender Party against, and reimburse each
Lender Party on demand for, any loss or expense incurred or sustained by such
Lender Party (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by a Lender
Party to fund or maintain LIBOR Loans), as a result of (a) any payment or
prepayment (whether or not authorized or required hereunder) of all or a portion
of a LIBOR Loan on a day other than the day on which the applicable Interest
Period ends, (b) any payment or prepayment, whether or not required hereunder,
of a Loan made after the delivery, but before the effective date, of a
Continuation/Conversion Notice, if such payment or prepayment prevents such
Continuation/Conversion Notice from becoming fully effective, (c) the failure of
any Loan to be made or of any Continuation/Conversion Notice to become effective
due to any condition precedent not being satisfied or due to any other action or
inaction of any Restricted Person, or (d) any Conversion (whether or not
authorized or required hereunder) of all or any portion of any LIBOR Loan into a
Base Rate Loan or into a different LIBOR Loan on a day other than the day on
which the applicable Interest Period ends. Such indemnification shall be on an
after-tax basis, taking into account any taxes imposed on the amounts paid as
indemnity.
Section 3.7. Reimbursable Taxes. Borrower covenants and agrees that:
44
(a) Borrower will indemnify each Lender Party against and
reimburse each Lender Party for all present and future stamp and other
taxes, duties, levies, imposts, deductions, charges, costs, and
withholdings whatsoever imposed, assessed, levied or collected on or in
respect of this Agreement or any LIBOR Loans or Letters of Credit
(whether or not legally or correctly imposed, assessed, levied or
collected) including all taxes imposed pursuant to Part XIII of the
Income Tax Act (Canada) and any withholding or other taxes imposed on
any Lender Party under Canadian Law, excluding, however, any taxes
imposed on or measured by the overall net income of Administrative
Agent or such Lender Party or any Applicable Lending Office of such
Lender Party by any jurisdiction in which such Lender Party or any such
Applicable Lending Office is located (all such non-excluded taxes,
levies, costs and charges being collectively called "Reimbursable
Taxes" in this section). Such indemnification shall be on an after-tax
basis, taking into account any taxes imposed on the amounts paid as
indemnity.
(b) All payments on account of the principal of, and interest
on, each Lender Party's Loans and Note, and all other amounts payable
by Borrower to any Lender Party hereunder, shall be made in full
without set-off or counterclaim and shall be made free and clear of and
without deductions or withholdings of any nature by reason of any
Reimbursable Taxes, all of which will be for the account of Borrower.
In the event of Borrower being compelled by Law to make any such
deduction or withholding from any payment to any Lender Party, Borrower
shall pay on the due date of such payment, by way of additional
interest, such additional amounts as are needed to cause the amount
receivable by such Lender Party after such deduction or withholding to
equal the amount which would have been receivable in the absence of
such deduction or withholding. If Borrower should make any deduction or
withholding as aforesaid, Borrower shall within 60 days thereafter
forward to such Lender Party an official receipt or other official
document evidencing payment of such deduction or withholding.
(c) If Borrower is ever required to pay any Reimbursable Tax
with respect to any LIBOR Loan, Borrower may elect, by giving to
Administrative Agent and such Lender Party not less than three Business
Days' notice, to Convert all (but not less than all) of any such LIBOR
Loan into a Base Rate Loan, but such election shall not diminish
Borrower's obligation to pay all Reimbursable Taxes.
(d) Notwithstanding the foregoing provisions of this section,
Borrower shall be entitled, to the extent it is required to do so by
Law, to deduct or withhold (and not to make any indemnification or
reimbursement for) income or other similar taxes imposed by the United
States of America (other than any portion thereof attributable to a
change in federal income tax Laws effected after the date hereof) from
interest, fees or other amounts payable hereunder for the account of
any Lender Party, other than a Lender Party (i) who is a U.S. person
for Federal income tax purposes or (ii) who has the Prescribed Forms on
file with Administrative Agent (with copies provided to Borrower) for
the applicable year to the extent deduction or withholding of such
taxes is not required as a result of the filing of such Prescribed
Forms, provided that if Borrower shall so deduct or withhold any such
taxes, it shall provide a statement to Administrative Agent and such
Lender Party, setting forth the amount of such taxes so deducted or
withheld, the
45
applicable rate and any other information or documentation which such
Lender Party may reasonably request for assisting such Lender Party to
obtain any allowable credits or deductions for the taxes so deducted
or withheld in the jurisdiction or jurisdictions in which such Lender
Party is subject to tax. As used in this section, "Prescribed Forms"
means such duly executed forms or statements, and in such number of
copies, which may, from time to time, be prescribed by Law and which,
pursuant to applicable provisions of (x) an income tax treaty between
the United States and the country of residence of the Lender Party
providing the forms or statements, (y) the Code, or (z) any applicable
rules or regulations thereunder, permit Borrower to make payments
hereunder for the account of such Lender Party free of such deduction
or withholding of income or similar taxes.
Section 3.8 Replacement of Lenders. If any Lender Party seeks
reimbursement for increased costs under Sections 3.2 through 3.7, then within
ninety days thereafter -- provided no Event of Default then exists -- Borrower
shall have the right (unless such Lender Party withdraws its request for
additional compensation) to replace such Lender Party by requiring such Lender
Party to assign its Loans and Notes and its commitments hereunder to an Eligible
Transferee reasonably acceptable to Administrative Agent and to Borrower,
provided that: (i) all Obligations of Borrower owing to such Lender Party being
replaced (including such increased costs and any breakage costs with respect to
any outstanding LIBOR Loans), but excluding principal and accrued interest on
the Notes being assigned) shall be paid in full to such Lender Party
concurrently with such assignment, and (ii) the replacement Eligible Transferee
shall purchase the Note being assigned by paying to such Lender Party a price
equal to the principal amount thereof plus accrued and unpaid interest and
accrued and unpaid commitment fees thereon. In connection with any such
assignment Borrower, Administrative Agent, such Lender Party and the replacement
Eligible Transferee shall otherwise comply with Section 10.5. Notwithstanding
the foregoing rights of Borrower under this section, however, Borrower may not
replace any Lender Party which seeks reimbursement for increased costs under
Section 3.2 through 3.7 unless Borrower is at the same time replacing all Lender
Parties which are then seeking such compensation.
ARTICLE IV - Conditions Precedent to Credit
Section 4.1. Documents to be Delivered. No Lender had any obligation
to make its first Loan, and LC Issuer had no obligation to issue the first
Letter of Credit unless Administrative Agent shall have received all of the
following, at Administrative Agent's office in Boston, Massachusetts, duly
executed and delivered and in form, substance and date satisfactory to
Administrative Agent, each of which was so executed and delivered (except for
the term "Existing Agreement", references to defined terms in this Section 4.1
are to such terms as defined in the Existing Agreement, as it was initially
executed and delivered):
(a) The Existing Agreement, as originally executed and
delivered, and any other documents that Lenders are to execute in
connection herewith.
(b) Each Note.
(c) Each Security Document listed in the Security Schedule.
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(d) Certain certificates including:
(i) An "Omnibus Certificate" of the secretary and of
the president of General Partner, which shall contain the
names and signatures of the officers of General Partner
authorized to execute Loan Documents and which shall certify
to the truth, correctness and completeness of the following
exhibits attached thereto: (1) a copy of resolutions duly
adopted by the Board of Directors of General Partner and in
full force and effect at the time this Agreement is entered
into, authorizing the execution of this Agreement and the
other Loan Documents delivered or to be delivered in
connection herewith and the consummation of the transactions
contemplated herein and therein, (2) a copy of the charter
documents of each Restricted Person and all amendments
thereto, certified by the appropriate official of such
Restricted Person's jurisdiction of organization, and (3) a
copy of any bylaws or agreement of limited partnership of each
Restricted Person;
(ii) A certificate of the president and of the chief
financial officer of General Partner, regarding satisfaction
of Section 4.2; and
(iii) A solvency certificate from Borrower and each
Guarantor.
(e) A certificate (or certificates) of the due formation,
valid existence and good standing of each Restricted Person in its
respective jurisdiction of organization, issued by the appropriate
authorities of such jurisdiction, and certificates of each Restricted
Person's good standing and due qualification to do business, issued by
appropriate officials in any jurisdictions in which such Restricted
Person owns property subject to Security Documents.
(f) Documents similar to those specified in subsections (d)(i)
and (e) of this section with respect to each Guarantor and the
execution by it of its guaranty of Borrower's Obligations.
(g) A favorable opinion of Tim Moore, Esq., General Counsel
for Restricted Persons, substantially in the form set forth in Exhibit
G-1, Fulbright & Jaworski L.L.P., special Texas and New York counsel to
Restricted Persons, substantially in the form set forth in Exhibit G-2,
Bennett Jones LLP, special Canadian counsel to Restricted Persons,
substantially in the form set forth in Exhibit G-3, and local counsel
for the states of California, Illinois, Louisiana, Mississippi and
Oklahoma satisfactory to Administrative Agent.
(h) The Initial Financial Statements.
(i) Certificates or binders evidencing Restricted Persons'
insurance in effect on the date hereof.
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(j) Copies of such permits and approvals regarding the
property and business of Restricted Persons as Administrative Agent
may request.
(k) A certificate signed by the chief executive officer of
General Partner in form and detail acceptable to Administrative Agent
confirming the insurance that is in effect as of the date hereof and
certifying that such insurance is customary for the businesses
conducted by Restricted Persons and is in compliance with the
requirements of this Agreement.
(l) Payment of all commitment, facility, agency and other fees
required to be paid to any Lender pursuant to any Loan Documents or
any commitment agreement heretofore entered into.
(m) The Intercreditor Agreement.
(n) Borrower and Plains Marketing Canada, L.P. shall have
adopted such risk management procedures and controls and such trading
policies as shall be satisfactory to each Agent in its sole and
absolute discretion.
(o) Each Agent and its counsel shall have reviewed and
approved, in its sole and absolute discretion, all outstanding Plains
MLP or Resources shareholder litigation and available insurance with
respect thereto.
(p) Each Restricted Person shall have executed and delivered
the Revolver Agreement and all conditions precedent to the Revolver
Agreement shall have been satisfied.
(q) General Partner shall have delivered to Administrative
Agent a certificate by the chief financial officer of General Partner,
certifying the pro forma Initial Financial Statements delivered
pursuant to clause (h) above and reflecting pro forma compliance with
each event specified in Sections 7.11 through 7.14, inclusive.
(r) The Borrowing Base as of the date of such first Loan and
first Letter of Credit shall be at least $5,000,000 more than the
initial Facility Usage on such date after giving effects to the Loans
and Letters of Credit requested for such date, and General Partner
shall have delivered to the Administrative Agent a Borrowing Base
Report in reasonable detail demonstrating compliance with this
requirement.
Section 4.2. Additional Conditions Precedent. No Lender has any
obligation to make any Loan (including its first), and LC Issuer has no
obligation to issue any Letter of Credit (including its first), unless the
following conditions precedent have been satisfied:
(a) All representations and warranties made by any Restricted
Person in any Loan Document shall be true on and as of the date of
such Loan or the date of issuance of such Letter of Credit as if such
representations and warranties had been made as of the date of such
Loan or the date of issuance of such Letter of Credit except to the
extent that such
48
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.
(b) No Default shall exist at the date of such Loan or the
date of issuance of such Letter of Credit.
(c) No Material Adverse Change shall have occurred to, and no
event or circumstance shall have occurred that could cause a Material
Adverse Change to, Plains MLP's or Borrower's Consolidated financial
condition or businesses since the date of the Initial Financial
Statements.
(d) Each Restricted Person shall have performed and complied
with all agreements and conditions required in the Loan Documents to be
performed or complied with by it on or prior to the date of such Loan
or the date of issuance of such Letter of Credit.
(e) The making of such Loan or the issuance of such Letter of
Credit shall not be prohibited by any Law and shall not subject any
Lender or any LC Issuer to any penalty or other onerous condition under
or pursuant to any such Law.
(f) Administrative Agent shall have received all documents and
instruments which Administrative Agent has then requested, in addition
to those described in Section 4.1 (including opinions of legal counsel
for Restricted Persons and Administrative Agent; corporate documents
and records; documents evidencing governmental authorizations,
consents, approvals, licenses and exemptions; and certificates of
public officials and of officers and representatives of Borrower and
other Persons), as to (i) the accuracy and validity of or compliance
with all representations, warranties and covenants made by any
Restricted Person in this Agreement and the other Loan Documents, (ii)
the satisfaction of all conditions contained herein or therein, and
(iii) all other matters pertaining hereto and thereto. All such
additional documents and instruments shall be satisfactory to
Administrative Agent in form, substance and date.
Section 4.3. Effectiveness of Amendment and Restatement. This Second
Amended and Restated Agreement shall become effective as of the date first
written above, when and only when:
(a) Administrative Agent shall have received, at
Administrative Agent's office (i) a counterpart of this Agreement
executed and delivered by Borrower, Plains MLP, All American and
Majority Lenders which are parties to the Existing Agreement, and
consented to by each other Guarantor, and (ii) 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 Revolver
Agreement effective pursuant to the terms thereof;
(b) Certain certificates including:
49
(i) An "Omnibus Certificate" of the secretary and
of the president of General Partner, which shall contain the
names and signatures of the officers of General Partner
authorized to execute Loan Documents and which shall certify
to the truth, correctness and completeness of the following
exhibits attached thereto: (1) a copy of resolutions duly
adopted by the Board of Directors of General Partner and in
full force and effect at the time this Agreement is entered
into, authorizing the execution of this Agreement and the
other Loan Documents delivered or to be delivered in
connection herewith and the consummation of the transactions
contemplated herein and therein, (2) a copy of the charter
documents of each Restricted Person and all amendments
thereto, certified by the appropriate official of such
Restricted Person's jurisdiction of organization, and (3) a
copy of any bylaws or agreement of limited partnership of each
Restricted Person;
(ii) A certificate of the president and of the chief
financial officer of General Partner, regarding satisfaction
of Section 4.2; and
(iii) A solvency certificate from Borrower and each
Guarantor.
(c) A certificate (or certificates) of the due formation,
valid existence and good standing of each Restricted Person in its
respective jurisdiction of organization, issued by the appropriate
authorities of such jurisdiction, and certificates of each Restricted
Person's good standing and due qualification to do business, issued by
appropriate officials in any jurisdictions in which such Restricted
Person owns property subject to Security Documents.
(d) Documents similar to those specified in subsections (b)(i)
and (c) of this section with respect to each Guarantor and the
execution by it of an amended and restated guaranty of Borrower's
Obligations.
(e) Favorable legal opinions in form, scope and substance as
reasonably requested by Administrative Agent.
(f) The Initial Financial Statements.
(g) Certificates or binders evidencing Restricted Persons'
insurance in effect on the date hereof.
(h) Copies of such permits and approvals regarding the
property and business of Restricted Persons as Administrative Agent may
request.
(i) A certificate signed by the chief executive officer of
General Partner in form and detail acceptable to Administrative Agent
confirming the insurance that is in effect as of the date hereof and
certifying that such insurance is customary for the businesses
conducted by Restricted Persons and is in compliance with the
requirements of this Agreement.
50
(j) In consideration of such amendment and restatement (and on the
condition that on or before July 2, 2002 (1) Lenders constituting not less
than Majority Lenders under the Existing Agreement shall have executed and
delivered this Agreement, and (2) lenders under the "Existing Agreement" as
defined in the Revolver Agreement constituting not less than "Majority
Lenders" under such "Existing Agreement", as each term is defined in the
Revolver Agreement, shall have executed and delivered the Revolver
Agreement), Borrower shall have paid (A) to Administrative Agent for the
account of each such Lender so timely executing and delivering this
Agreement, an amendment fee in immediately available funds equal to
one-eighth of one percent (0.125%) of each such Lender's Commitment; and
(B) Borrower shall have paid all other fees required to be paid to
Administrative Agent or any Lender pursuant to any Loan Documents,
including reasonable fees and expenses of Thompson & Knight LLP, counsel to
Administrative Agent;
(k) The amended and restated Intercreditor Agreement.
(l) General Partner shall have delivered to Administrative Agent a
certificate by the chief financial officer of General Partner, certifying
the pro forma Initial Financial Statements delivered pursuant to clause (f)
above and reflecting pro forma compliance with each event specified in
Sections 7.11 through 7.14, inclusive.
In the event that as of the date hereof (or such other date as Borrower and
Administrative Agent may agree) (1) Lenders constituting at least Majority
Lenders under the Existing Agreement have not executed and delivered this
Agreement, or (2) lenders under the "Existing Agreement" as defined in the
Revolver Agreement constituting not less than "Majority Lenders" under such
"Existing Agreement", as each term is defined in the Revolver Agreement, have
not executed and delivered the Revolver Agreement), then this Agreement shall
not be effective, Borrower shall have no obligation to pay the amendment fee set
forth in clause 4.3(j)(A), and the Existing Agreement shall continue in full
force and effect.
ARTICLE V - Representations and Warranties
To confirm each Lender's understanding concerning Restricted Persons and
Restricted Persons' businesses, properties and obligations and to induce each
Lender to enter into this Agreement and to extend credit hereunder, Plains MLP
and Borrower represent and warrant to each Lender that:
Section 5.1. No Default. No Restricted Person is in default in the
performance of any of the covenants and agreements contained in any Loan
Document. No event has occurred and is continuing which constitutes a Default.
Section 5.2. Organization and Good Standing. Each Restricted Person is duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, having all powers required to carry on its
business and enter into and carry out the transactions contemplated hereby. Each
Restricted Person is duly qualified, in good standing, and authorized to do
business in all other jurisdictions within the United States and Canada wherein
the character of the properties owned or held by it or the nature of the
business transacted by it
51
makes such qualification necessary except where the failure to so qualify would
not cause a Material Adverse Change. Each Restricted Person has taken all
actions and procedures customarily taken in order to enter, for the purpose of
conducting business or owning property, each jurisdiction outside the United
States and Canada wherein the character of the properties owned or held by it or
the nature of the business transacted by it makes such actions and procedures
necessary except where the failure to so qualify would not cause a Material
Adverse Change.
Section 5.3. Authorization. Each Restricted Person has duly taken all
action necessary to authorize the execution and delivery by it of the Loan
Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. Borrower is duly authorized to borrow funds hereunder.
Section 5.4. No Conflicts or Consents. The execution and delivery by the
various Restricted Persons of the Loan Documents to which each is a party, the
performance by each of its obligations under such Loan Documents, and the
consummation of the transactions contemplated by the various Loan Documents, do
not and will not (i) conflict with any provision of (1) any Law, (2) the
organizational documents of any Restricted Person or any of its Affiliates, or
(3) any agreement, judgment, license, order or permit applicable to or binding
upon any Restricted Person or any of its Affiliates, (ii) result in the
acceleration of any Indebtedness owed by any Restricted Person or any of its
Affiliates, or (iii) result in or require the creation of any Lien upon any
assets or properties of any Restricted Person or any of its Affiliates except as
expressly contemplated in the Loan Documents. Except as expressly contemplated
in the Loan Documents or disclosed in the Disclosure Schedule, no permit,
consent, approval, authorization or order of, and no notice to or filing,
registration or qualification with, any Tribunal or third party is required in
connection with the execution, delivery or performance by any Restricted Person
of any Loan Document or to consummate any transactions contemplated by the Loan
Documents.
Section 5.5. Enforceable Obligations. This Agreement is, and the other Loan
Documents when duly executed and delivered will be, legal, valid and binding
obligations of each Restricted Person which is a party hereto or thereto,
enforceable in accordance with their terms except as such enforcement may be
limited by bankruptcy, insolvency or similar Laws of general application
relating to the enforcement of creditors' rights.
Section 5.6. Initial Financial Statements. Plains MLP has heretofore
delivered to each Lender true, correct and complete copies of the Initial
Financial Statements. The Initial Financial Statements other than pro forma
financial statements fairly present Plains MLP's Consolidated and consolidating
financial position at the date thereof and the Consolidated and consolidating
results of Plains MLP's operations for the periods thereof, and in the case of
the annual Initial Financial Statements, Consolidated cash flows for the period
thereof. The pro forma Initial Financial Statements fairly present Plains MLP's
pro forma Consolidated and consolidating financial position at the date thereof
and the pro forma Consolidated results of Plains MLP's operations for the period
thereof. Since the date of the annual Initial Financial Statements no Material
Adverse Change has occurred, except as reflected in the quarterly Initial
Financial Statements or in the Disclosure Schedule. All Initial Financial
Statements other than pro forma
52
financial statements were prepared in accordance with GAAP. All Initial
Financial Statements that are pro forma financial statements were prepared in
accordance with GAAP with such pro forma adjustments as have been accepted by
Administrative Agent.
Section 5.7. Other Obligations and Restrictions. No Restricted Person has
any outstanding Liabilities of any kind (including contingent obligations, tax
assessments, and unusual forward or long-term commitments) which are, in the
aggregate, material to Plains MLP or material with respect to Plains MLP's
Consolidated financial condition and not shown in the Initial Financial
Statements, disclosed in the Disclosure Schedule or otherwise permitted under
Section 7.1. Except as shown in the Initial Financial Statements or disclosed in
the Disclosure Schedule, no Restricted Person is subject to or restricted by any
franchise, contract, deed, charter restriction, or other instrument or
restriction which could cause a Material Adverse Change.
Section 5.8. Full Disclosure. No certificate, statement or other
information delivered herewith or heretofore by any Restricted Person to any
Lender in connection with the negotiation of this Agreement or in connection
with any transaction contemplated hereby contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading as of the date made or deemed made. All
written information furnished after the date hereof by or on behalf of any
Restricted Person to Administrative Agent or any Lender Party in connection with
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material respect
in light of the circumstances in which made, or based on reasonable estimates on
the date as of which such information is stated or certified. There is no fact
known to any Restricted Person that has not been disclosed to each Lender in
writing which could cause a Material Adverse Change.
Section 5.9. Litigation. Except as disclosed in the Initial Financial
Statements, in the Disclosure Schedule or pursuant to Section 6.4: (i) there are
no actions, suits or legal, equitable, arbitrative or administrative proceedings
pending, or to the knowledge of any Restricted Person threatened, against any
Restricted Person or affecting any Collateral (including, without limitation,
any which challenge or otherwise pertain to any Restricted Person's title to any
Collateral) before any Tribunal which could reasonably be expected to cause a
Material Adverse Change, and (ii) there are no outstanding judgments,
injunctions, writs, rulings or orders by any such Tribunal against any
Restricted Person or any Restricted Person's stockholders, partners, directors
or officers or affecting any Collateral which could reasonably be expected to
cause a Material Adverse Change.
Section 5.10. Labor Disputes and Acts of God. Except as disclosed in the
Disclosure Schedule or otherwise disclosed in writing to Administrative Agent,
neither the business nor the properties of any Restricted Person has been
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance), which could cause
a Material Adverse Change.
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Section 5.11. ERISA Plans and Liabilities. All currently existing ERISA
Plans are listed in the Disclosure Schedule. Except as disclosed in the Initial
Financial Statements or in the Disclosure Schedule, no Termination Event has
occurred with respect to any ERISA Plan and all ERISA Affiliates are in
compliance with ERISA in all material respects. No ERISA Affiliate is required
to contribute to, or has any other absolute or contingent liability in respect
of, any "multiemployer plan" as defined in Section 4001 of ERISA. Except as set
forth in the Disclosure Schedule: (i) no "accumulated funding deficiency" (as
defined in Section 412(a) of the Code exists with respect to any ERISA Plan,
whether or not waived by the Secretary of the Treasury or his delegate, and (ii)
the current value of each ERISA Plan's benefits does not exceed the current
value of such ERISA Plan's assets available for the payment of such benefits by
more than $500,000.
Section 5.12. Compliance with Laws. Except as set forth in the Disclosure
Schedule, each Restricted Person has all permits, licenses and authorizations
required in connection with the conduct of its businesses, except to the extent
failure to have any such permit, license or authorization could not cause a
Material Adverse Change. Each Restricted Person is in compliance with the terms
and conditions of all such permits, licenses and authorizations, and is also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any Law, including applicable Environmental Law, or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply could not cause a Material Adverse Change. Without limiting the
foregoing, each Restricted Person (i) has filed and maintained all tariffs
applicable to its business with each applicable commission, (ii) and all such
tariffs are in compliance with all Laws administered or promulgated by each
applicable commission and (iii) has imposed charges on its customers in
compliance with such tariffs, all contracts applicable to its business and all
applicable Laws. As used herein, "commission" includes the Federal Energy
Regulatory Commission, the Public Utility Commission of the State of California
and each other US federal, Canadian federal, state, provincial, or local
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over any Restricted Person or its properties.
Section 5.13. Environmental Laws. As used in this section: "CERCLA" means
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, "CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System List of the Environmental
Protection Agency, and "Release" has the meaning given such term in 42 U.S.C.
(S) 9601(22). Without limiting the provisions of Section 5.12 and except as set
forth in the Disclosure Schedule:
(a) No notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no penalty has
been assessed, and no investigation or review is pending or threatened by any
Tribunal or any other Person with respect to any of the following which in the
aggregate could cause a Material Adverse Change (i) any alleged generation,
treatment, storage, recycling, transportation, disposal, or Release of any
Hazardous Materials, either by any Restricted Person or on any property owned by
any Restricted Person, (ii) any remedial action which might be needed to respond
to any such alleged generation, treatment, storage, recycling, transportation,
disposal, or Release, or (iii) any alleged failure by
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any Restricted Person to have any permit, license or authorization required in
connection with the conduct of its business or with respect to any such
generation, treatment, storage, recycling, transportation, disposal, or Release.
(b) No Restricted Person otherwise has any known material contingent
liability in connection with any alleged generation, treatment, storage,
recycling, transportation, disposal, or Release of any Hazardous Materials.
(c) No Restricted Person has handled any Hazardous Materials, other than as
a generator, on any properties now or previously owned or leased by any
Restricted Person to an extent that such handling has caused, or could cause, a
Material Adverse Change.
(d) Except to the extent that the following in the aggregate has not caused
and could not cause a Material Adverse Change:
(i) no PCBs are or have been present at any properties now or previously
owned or leased by any Restricted Person;
(ii) no asbestos is or has been present at any properties now or
previously owned or leased by any Restricted Person;
(iii) there are no underground storage tanks for Hazardous Materials,
active or abandoned, at any properties now or previously owned or
leased by any Restricted Person; and
(iv) no Hazardous Materials have been Released at, on or under any
properties now or previously owned or leased by any Restricted
Person.
(e) No Restricted Person has transported or arranged for the transportation
of any Hazardous Material to any location which is listed on the National
Priorities List under CERCLA, any location listed for possible inclusion on the
National Priorities List by the Environmental Protection Agency in CERCLIS, nor,
except to the extent that has not caused and could not cause a Material Adverse
Change, any location listed on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations which may
lead to claims against any Restricted Person for clean-up costs, remedial work,
damages to natural resources or for personal injury claims, including, but not
limited to, claims under CERCLA.
(f) No property now or previously owned or leased by any Restricted Person
is listed or proposed for listing on the National Priority list promulgated
pursuant to CERCLA, in CERCLIS, nor, except to the extent that has not caused
and could not cause a Material Adverse Change, on any similar state list of
sites requiring investigation or clean-up.
(g) There are no Liens arising under or pursuant to any Environmental Laws
on any of the real properties or properties owned or leased by any Restricted
Person, and no government actions of which Borrower is aware have been taken or
are in process which could subject any of such properties to such Liens; nor
would any Restricted Person be required to place any notice or
55
restriction relating to the presence of Hazardous Materials at any properties
owned by it in any deed to such properties.
(h) There have been no environmental investigations, studies, audits,
tests, reviews or other analyses for ground water or soil contamination relating
to the Release of Hazardous Materials conducted by or which are in the
possession of any Restricted Person in relation to any properties or facility
now or previously owned or leased by any Restricted Person which have not been
made available to Administrative Agent.
(i) (i) Each Canadian Subsidiary and each Subsidiary of either such
Person are conducting their businesses in material compliance with all
applicable Laws, including Environmental Laws, and have and are in compliance
with all licenses and permits required under any such Laws, unless failure to so
comply could not reasonably be expected to cause a Material Adverse Change; (ii)
none of the operations or properties of either Canadian Subsidiary nor any
Subsidiary of either such Person is the subject of federal, provincial or local
investigation evaluating whether any material remedial action is needed to
respond to a release of any Hazardous Materials into the environment or to the
improper storage or disposal (including storage or disposal at offsite
locations) of any Hazardous Materials, unless such remedial action could not
reasonably be expected to cause a Material Adverse Change; and (iii) neither
Canadian Subsidiary nor any Subsidiary of either such Person (and to the best
knowledge of each Canadian Subsidiary, no other Person) has filed any notice
under any Law indicating that any such Person is responsible for the improper
release into the environment, or the improper storage or disposal, of any
material amount of any Hazardous Materials or that any Hazardous Materials have
been improperly released, or are improperly stored or disposed of, upon any
property of any such Person, unless such failure to so comply could not
reasonably be expected to cause a Material Adverse Change.
Section 5.14. Names and Places of Business. No Restricted Person has,
during the preceding five years, had, been known by, or used any other trade or
fictitious name, except as disclosed in the Disclosure Schedule. Except as
otherwise indicated in the Disclosure Schedule, the chief executive office and
principal place of business of each Restricted Person are (and for the preceding
five years have been) located at the address of Borrower set out in Section
10.3. Except as indicated in the Disclosure Schedule or otherwise disclosed in
writing to the Administrative Agent, no Restricted Person has any other office
or place of business.
Section 5.15. Borrower's Subsidiaries. Borrower does not presently have any
Subsidiary or own any stock in any other corporation or association except those
listed in the Disclosure Schedule or hereafter disclosed to Administrative Agent
in writing. Neither Borrower nor any Restricted Person is a member of any
general or limited partnership, limited liability company, joint venture or
association of any type whatsoever except those listed in the Disclosure
Schedule or hereafter disclosed to Administrative Agent in writing. Borrower
owns, directly or indirectly, the equity interest in each of its Subsidiaries
which is indicated in the Disclosure Schedule.
Section 5.16. Title to Properties; Licenses. Each Restricted Person has
good and defensible title to all of its material properties and assets, free and
clear of all Liens other than Permitted Liens and of all impediments to the use
of such properties and assets in such Restricted
56
Person's business. Each Restricted Person possesses all licenses, permits,
franchises, patents, copyrights, trademarks and trade names, and other
intellectual property (or otherwise possesses the right to use such intellectual
property without violation of the rights of any other Person) which are
necessary to carry out its business as presently conducted and as presently
proposed to be conducted hereafter, and no Restricted Person is in violation in
any material respect of the terms under which it possesses such intellectual
property or the right to use such intellectual property.
Section 5.17. Government Regulation. Neither Borrower nor any other
Restricted Person owing Obligations is subject to regulation under the Public
Utility Holding Company Act of 1935, the Investment Company Act of 1940 (as any
of the preceding acts have been amended) or any other Law which regulates the
incurring by such Person of Indebtedness, including Laws relating to common
contract carriers or the sale of electricity, gas, steam, water or other public
utility services. Neither Borrower nor any other Restricted Person is subject to
regulation under the Federal Power Act which would violate, result in a default
of, or prohibit the effectiveness or the performance of any of the provisions of
the Loan Documents.
Section 5.18. Insider. No Restricted Person, nor any Person having
"control" (as that term is defined in 12 U.S.C. (S) 375b(9) or in regulations
promulgated pursuant thereto) of any Restricted Person, is a "director" or an
"executive officer" or "principal shareholder" (as those terms are defined in 12
U.S.C. (S) 375b(8) or (9) or in regulations promulgated pursuant thereto) of any
Lender, of a bank holding company of which any Lender is a Subsidiary or of any
Subsidiary of a bank holding company of which any Lender is a Subsidiary.
Section 5.19. Solvency. Upon giving effect to the issuance of the Notes,
the execution of the Loan Documents by Borrower and each Guarantor and the
consummation of the transactions contemplated hereby, (i) Borrower and each
Guarantor will be solvent (as such term is used in applicable bankruptcy,
liquidation, receivership, insolvency or similar Laws), and the sum of
Borrower's and each Guarantor's absolute and contingent liabilities, including
the Obligations or guarantees thereof, shall not exceed the fair market value of
such Restricted Person's assets, and (ii) Borrower's and each Guarantor's
capital should be adequate for the businesses in which such Restricted Person is
engaged and intends to be engaged. Neither Borrower nor any Restricted Person
has incurred (whether under the Loan Documents or otherwise), nor does any
Restricted Person intend to incur or believe that it will incur, debts which
will be beyond its ability to pay as such debts mature.
Section 5.20. Credit Arrangements. The Disclosure Schedule contains a
complete and correct list, as of the date of this Agreement, of each credit
agreement, loan agreement, indenture, purchase agreement, guaranty or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guaranty
by, any Restricted Person, or to which any Restricted Person is subject, other
than the Loan Documents, the Revolver Agreement and the "Loan Documents" as
defined therein, and the aggregate principal or face amount outstanding or which
may become outstanding under each such arrangement is correctly described in the
Disclosure Schedule. No Restricted Person is subject to any restriction under
any credit agreement, loan agreement, indenture, purchase agreement, guaranty or
other arrangement providing for or otherwise relating to any Indebtedness
57
or any extension of credit (or commitment for any extension of credit) to, or
guaranty by, any Affiliate, other than another Restricted Person.
ARTICLE VI - Affirmative Covenants
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to Borrower, and to induce each Lender to
enter into this Agreement and extend credit hereunder, Plains MLP and Borrower
covenant and agree that until the full and final payment of the Obligations and
the termination of this Agreement, unless Majority Lenders, or all Lenders as
required under Section 10.1, have previously agreed otherwise:
Section 6.1. Payment and Performance. Each Restricted Person will pay all
amounts due under the Loan Documents, to which it is a party, in accordance with
the terms thereof and will observe, perform and comply with every covenant, term
and condition expressed in the Loan Documents to which it is a party.
Section 6.2. Books, Financial Statements and Reports. Each Restricted
Person will at all times maintain full and accurate books of account and
records. Plains MLP will maintain and will cause its Subsidiaries to maintain a
standard system of accounting, will maintain its Fiscal Year, and will furnish
the following statements and reports to each Lender at Restricted Person's
expense:
(a) As soon as available, and in any event within ninety (90) days
after the end of each Fiscal Year (i) complete Consolidated financial
statements of Plains MLP together with all notes thereto, prepared in
reasonable detail in accordance with GAAP, together with an unqualified
opinion, based on an audit using generally accepted auditing standards, by
PricewaterhouseCoopers LLP, or other independent certified public
accountants selected by General Partner and acceptable to Majority
Lenders, stating that such Consolidated financial statements have been so
prepared and (ii) supporting unaudited consolidating balance sheets and
statements of income of each other Restricted Person (except for any
Restricted Person whose financial statements are substantially the same as
those of Plains MLP). These financial statements shall contain a
Consolidated and consolidating balance sheet as of the end of such Fiscal
Year and Consolidated and consolidating statements of earnings for such
Fiscal Year. Such Consolidated financial statements shall set forth in
comparative form the corresponding figures for the preceding Fiscal Year.
In addition, within ninety (90) days after the end of each Fiscal Year
Plains MLP will furnish a certificate signed by such accountants (i)
stating that they have read this Agreement, (ii) containing calculations
showing compliance (or non-compliance) at the end of such Fiscal Year with
the requirements of Sections 7.11 through 7.14, inclusive, and (iii)
further stating that in making their examination and reporting on the
Consolidated financial statements described above they obtained no
knowledge of any Default existing at the end of such Fiscal Year, or, if
they did so conclude that a Default existed, specifying its nature and
period of existence.
(b) As soon as available, and in any event within forty-five (45) days
after the end of each of the first three Fiscal Quarters of each Fiscal
Year (i) Plains MLP's
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Consolidated balance sheet as of the end of such Fiscal Quarter and Consolidated
statements of Plains MLP's earnings and cash flows for such Fiscal Quarter and
for the period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter, and (ii) supporting consolidating balance sheets and
statements of income of each other Restricted Person (except for any Restricted
Person whose financial statements are substantially the same as those of Plains
MLP), all in reasonable detail and prepared in accordance with GAAP, subject to
changes resulting from normal year-end adjustments, and as soon as available,
and in any event within forty-five (45) days after the end of the last Fiscal
Quarter of each Fiscal Year, Plains MLP's unaudited Consolidated balance sheet
as of the end of such Fiscal Quarter and income statement for such Fiscal
Quarter and for the period from the beginning of the current Fiscal Year to the
end of such Fiscal Quarter. In addition Plains MLP will, together with each such
set of financial statements and each set of financial statements furnished under
subsection (a) of this section, furnish a certificate in the form of Exhibit F
signed by the chief financial officer, principal accounting officer or treasurer
of General Partner stating that such financial statements are accurate and
complete in all material respects (subject to normal year-end adjustments),
stating that he has reviewed the Loan Documents, containing calculations showing
compliance (or non-compliance) at the end of such Fiscal Quarter with the
requirements of Sections 7.11 through 7.14, inclusive and stating that no
Default exists at the end of such Fiscal Quarter or at the time of such
certificate or specifying the nature and period of existence of any such
Default.
(c) Promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by Plains MLP to its unit
holders and all registration statements, periodic reports and other statements
and schedules filed by Plains MLP with any securities exchange, the Securities
and Exchange Commission or any similar governmental authority.
(d) As soon as available, and in any event within ninety (90) days after
the end of each Fiscal Year, a business and financial plan for Plains MLP (in
form reasonably satisfactory to Administrative Agent), prepared or caused to be
prepared by a senior financial officer thereof, setting forth for the first year
thereof, quarterly financial projections and budgets for Plains MLP, and
thereafter yearly financial projections during the Commitment Period.
(e) On or about the twenty-sixth (26th) (but no later than the
twenty-eighth (28th)) day of each calendar month (i) a Borrowing Base Report in
the form of Exhibit H duly completed by an authorized officer of General Partner
and conforming with the requirements of Section 2.13, and (ii) a statement
reconciling such report with the Borrowing Base Report delivered on or about the
26th day of the preceding calendar month.
(f) As soon as available, and in any event within thirty (30) days after
the end of each Fiscal Year, an environmental compliance certificate signed by
the president or chief executive officer of General Partner in the form attached
hereto as Exhibit I. Further, if requested by Administrative Agent, Restricted
Persons shall permit and cooperate with an
59
environmental and safety review made in connection with the operations of
Restricted Persons' properties one time during each Fiscal Year, by Pilko
& Associates, Inc. or other consultants selected by Administrative Agent
which review shall, if requested by Administrative Agent, be arranged and
supervised by environmental legal counsel for Administrative Agent, all at
Restricted Persons' cost and expense. The consultant shall render a verbal
or written report, as specified by Administrative Agent, based upon such
review at Restricted Persons' cost and expense and a copy thereof will be
provided to Restricted Persons.
(g) Concurrently with the annual renewal of Restricted Persons'
insurance policies, Restricted Persons shall at their own cost and
expense, if requested by Administrative Agent in writing, cause a
certificate or report to be issued by Administrative Agent's professional
insurance consultants or other insurance consultants satisfactory to
Administrative Agent certifying that Restricted Persons' insurance for the
next succeeding year after such renewal (or for such longer period for
which such insurance is in effect) complies with the provisions of this
Agreement and the Security Documents.
(h) As soon as available, and in any event within five (5) Business
Days after the end of each month, a report on a mark to market basis of
all Floating Rate Contracts as of the end of such month, and together with
such report a complete list of all net realized losses on any Floating
Rate Contracts for the prior twelve months in form satisfactory to
Administrative Agent.
Section 6.3. Other Information and Inspections. In each case subject to
the last sentence of this Section 6.3, each Restricted Person will furnish to
each Lender any information which Administrative Agent or any Lender may from
time to time request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Restricted Persons' businesses and
operations. In each case subject to the last sentence of this Section 6.3, each
Restricted Person will permit representatives appointed by Administrative Agent
(including independent accountants, auditors, agents, attorneys, appraisers and
any other Persons) to visit and inspect during normal business hours any of such
Restricted Person's property, including its books of account, other books and
records, and any facilities or other business assets, and to make extra copies
therefrom and photocopies and photographs thereof, and to write down and record
any information such representatives obtain, and each Restricted Person shall
permit Administrative Agent or its representatives to investigate and verify the
accuracy of the information furnished to Administrative Agent or any Lender in
connection with the Loan Documents and to discuss all such matters with its
officers, employees and, upon prior notice to Borrower, its representatives.
Without limitation of the foregoing, within one hundred twenty (120) days after
the end of each Fiscal Year, and in addition once during each Fiscal Year, if
requested by Administrative Agent at the instruction of Majority Lenders,
Borrower shall permit commercial financial examiners appointed by Administrative
Agent to conduct a commercial finance examination of the business and assets of
Restricted Persons and in connection with such examination to have full access
to and the right to examine, audit, make abstracts and copies from, and inspect
Restricted Persons' records, files, books of account and all other documents,
instruments and agreements to which a Restricted Person is a party. Borrower
shall pay all
60
reasonable costs and expenses of Administrative Agent associated with any such
examination. Each of the foregoing inspections and examinations shall be made
subject to compliance with applicable safety standards and the same conditions
applicable to any Restricted Person in respect of property of that Restricted
Person on the premises of Persons other than a Restricted Person or an Affiliate
of a Restricted Person, and all information, books and records furnished or
requested to be furnished, or of which copies, photocopies or photographs are
made or requested to be made, all information to be investigated or verified and
all discussions conducted with any officer, employee or representative of any
Restricted Person shall be subject to any applicable attorney-client privilege
exceptions which the Restricted Person determines is reasonably necessary and
compliance with conditions to disclosures under non-disclosure agreements
between any Restricted Person and Persons other than a Restricted Person or an
Affiliate of a Restricted Person and the express undertaking of each Person
acting at the direction of or on behalf of any Lender Party to be bound by the
confidentiality provisions of Section 10.6 of this Agreement.
Section 6.4. Notice of Material Events and Change of Address. Each
Restricted Person will notify each Lender Party, not later than five (5)
Business Days after any executive officer of Restricted Persons has knowledge
thereof, stating that such notice is being given pursuant to this Agreement, of:
(a) the occurrence of any Material Adverse Change,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed
by any Restricted Person or of any default by any Restricted Person
under any indenture, mortgage, agreement, contract or other instrument
to which any of them is a party or by which any of them or any of their
properties is bound, if such acceleration or default could cause a
Material Adverse Change,
(d) the occurrence of any Termination Event,
(e) 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 asserted against any Restricted Person or with
respect to any Restricted Person's properties taken as a whole, and
(f) the filing of any suit or proceeding, or the assertion in
writing of a claim against any Restricted Person or with respect to any
Restricted Person's properties in which an adverse decision reasonably
could be expected to cause a Material Adverse Change.
Upon the occurrence of any of the foregoing, Restricted Persons will take all
necessary or appropriate steps to remedy promptly any such Material Adverse
Change, Default, acceleration, default, or Termination Event to protect against
any such adverse claim, to defend any such suit or proceeding, and to resolve
all controversies on account of any of the foregoing. Restricted
61
Persons will also notify Administrative Agent and Administrative Agent's counsel
in writing at least twenty Business Days prior to the date that any Restricted
Person changes its name or the location of its chief executive office or
principal place of business or the place where it keeps its books and records
concerning the Collateral, furnishing with such notice any necessary financing
statement amendments or requesting Administrative Agent and its counsel to
prepare the same.
Section 6.5. Maintenance of Properties. Each Restricted Person will
maintain, preserve, protect, and keep all Collateral and all other property used
or useful in the conduct of its business in good condition (ordinary wear and
tear excepted) and in compliance with all applicable Laws, and will from time to
time make all repairs, renewals and replacements needed to enable the business
and operations carried on in connection therewith to be promptly and
advantageously conducted at all times.
Section 6.6. Maintenance of Existence and Qualifications. Each
Restricted Person will maintain and preserve its existence and its rights and
franchises in full force and effect and will qualify to do business in all
states or jurisdictions where required by applicable Law, except where the
failure so to qualify will not cause a Material Adverse Change.
Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Restricted
Person will (a) timely file all required tax returns including any extensions;
(b) timely pay all taxes, assessments, and other governmental charges or levies
imposed upon it or upon its income, profits or property; (c) within one hundred
twenty (120) days after the date such goods are delivered or such services are
rendered, pay all Liabilities owed by it on ordinary trade terms to vendors,
suppliers and other Persons providing goods and services used by it in the
ordinary course of its business; (d) pay and discharge when due all other
Liabilities now or hereafter owed by it, other than royalty payments suspended
in the ordinary course of business; and (e) maintain appropriate accruals and
reserves for all of the foregoing in accordance with GAAP. Each Restricted
Person may, however, delay paying or discharging any of the foregoing so long as
it is in good faith contesting the validity thereof by appropriate proceedings,
if necessary, and has set aside on its books adequate reserves therefor which
are required by GAAP.
Section 6.8. Insurance. Each Restricted Person shall at all times
maintain insurance for its property in accordance with the Insurance Schedule
which insurance shall be by financially sound and reputable insurers. Each
Restricted Person will maintain any additional insurance coverage as described
in the respective Security Documents. Upon demand by Administrative Agent any
insurance policies covering Collateral shall be endorsed (a) to provide for
payment of losses to Administrative Agent as its interests may appear, (b) to
provide that such policies may not be canceled or reduced or affected in any
material manner for any reason without fifteen days prior notice to
Administrative Agent, and (c) to provide for any other matters specified in any
applicable Security Document or which Administrative Agent may reasonably
require. Each Restricted Person shall at all times maintain insurance against
its liability for injury to persons or property in accordance with the Insurance
Schedule, which insurance shall be by financially sound and reputable insurers.
Without limiting the foregoing, each Restricted Person shall at all time
maintain liability insurance in accordance with the Insurance Schedule.
Section 6.9. Performance on Borrower's Behalf. If any Restricted Person
fails to pay any taxes, insurance premiums, expenses, attorneys' fees or other
amounts it is required to pay under
62
any Loan Document, Administrative Agent may pay the same after notice of such
payment by Administrative Agent is given to Borrower. Borrower shall immediately
reimburse Administrative Agent for any such payments and each amount paid by
Administrative Agent shall constitute an Obligation owed hereunder which is due
and payable on the date such amount is paid by Administrative Agent.
Section 6.10. Interest. Borrower hereby promises to each Lender to pay
interest at the Default Rate on all Obligations (including Obligations to pay
fees or to reimburse or indemnify any Lender) which Borrower has in this
Agreement promised to pay to such Lender and which are not paid when due. Such
interest shall accrue from the date such Obligations become due until they are
paid.
Section 6.11. Compliance with Agreements and Law. Each Restricted
Person will perform all material obligations it is required to perform under the
terms of each indenture, mortgage, deed of trust, security agreement, lease, and
franchise, and each material agreement, contract or other instrument or
obligation to which it is a party or by which it or any of its properties is
bound. Each Restricted Person will conduct its business and affairs in
compliance with all Laws applicable thereto.
Section 6.12. Environmental Matters; Environmental Reviews.
(a) Each Restricted Person will comply in all material respects with
all Environmental Laws now or hereafter applicable to such Restricted Person as
well as all contractual obligations and agreements with respect to environmental
remediation or other environmental matters and shall obtain, at or prior to the
time required by applicable Environmental Laws, all environmental, health and
safety permits, licenses and other authorizations necessary for its operations
and will maintain such authorizations in full force and effect.
(b) Each Restricted Person will promptly furnish to Administrative
Agent all written notices of violation, orders, claims, citations, complaints,
penalty assessments, suits or other proceedings received by any Restricted
Person or General Partner, or of which it has notice, pending or threatened
against any Restricted Person, the potential liability of which exceeds the
Dollar Equivalent of $1,000,000 or would cause a Material Adverse Change if
resolved adversely against any Restricted Person, by any governmental authority
with respect to any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations in connection with
its ownership or use of its properties or the operation of its business.
(c) Each Restricted Person will promptly furnish to Administrative
Agent all requests for information, notices of claim, demand letters, and other
notifications, received by any Restricted Person or General Partner in
connection with its ownership or use of its properties or the conduct of its
business, relating to potential responsibility with respect to any investigation
or clean-up of Hazardous Material at any location, the potential liability of
which exceeds the Dollar Equivalent of $1,000,000 or would cause a Material
Adverse Change if resolved adversely against any Restricted Person.
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Section 6.13. Evidence of Compliance. Subject to the last sentence of
Section 6.3, each Restricted Person will furnish to each Lender at such
Restricted Person's expense all evidence which Administrative Agent from time to
time reasonably requests in writing as to the accuracy and validity of or
compliance with all representations, warranties and covenants made by any
Restricted Person in the Loan Documents, the satisfaction of all conditions
contained therein, and all other matters pertaining thereto.
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.
Section 6.15. Perfection and Protection of Security Interests and
Liens. Each Restricted Person will from time to time deliver to Administrative
Agent any financing statements, continuation statements, extension agreements
and other documents, properly completed and executed (and acknowledged when
required) by Restricted Persons in form and substance satisfactory to
Administrative Agent, which Administrative Agent requests for the purpose of
perfecting, confirming, or protecting any Liens or other rights in Collateral
securing any Obligations.
Section 6.16. Bank Accounts; Offset. To secure the repayment of the
Obligations, each Restricted Person hereby grants to each Lender a security
interest, a lien, and a right of offset, each of which shall be in addition to
all other interests, liens, and rights of any Lender at common Law, under the
Loan Documents, or otherwise, and each of which shall be upon and against (a)
any and all moneys, securities or other property (and the proceeds therefrom) of
such Restricted Person now or hereafter held or received by or in transit to any
Lender from or for the account of such Restricted Person, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, (b) any and
all deposits (general or special, time or demand, provisional or final) of such
Restricted Person with any Lender, and (c) any other credits and claims of such
Restricted Person at any time existing against any Lender, including claims
under certificates of deposit. At any time and from time to time during the
continuance of any Event of Default, each Lender is
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hereby authorized to foreclose upon, or to offset against the Obligations then
due and payable (in either case without notice to any Restricted Person), any
and all items herein above referred to. The remedies of foreclosure and offset
are separate and cumulative, and either may be exercised independently of the
other without regard to procedures or restrictions applicable to the other.
Section 6.17. Guaranties of Subsidiaries. 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 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. Each
Subsidiary of Plains MLP existing on the date hereof shall duly execute and
deliver such a guaranty prior to the making of any Loan hereunder. Plains MLP
will cause each of its Subsidiaries to deliver to Administrative Agent,
simultaneously with its delivery of such a guaranty, written evidence
satisfactory to Administrative Agent and its counsel that such Subsidiary has
taken all corporate, limited liability company or partnership action necessary
to duly approve and authorize its execution, delivery and performance of such
guaranty and any other documents which it is required to execute.
Section 6.18. Compliance with Agreements. Each Restricted Person shall
observe, perform or comply with any agreement with any Person or any term or
condition of any instrument, if such agreement or instrument is materially
significant to such Restricted Person or to Restricted Persons on a Consolidated
basis or materially significant to any Guarantor, unless any such failure to so
observe, perform or comply is remedied within the applicable period of grace (if
any) provided in such agreement or instrument.
Section 6.19. Rents. By the terms of the various Security Documents,
certain Restricted Persons are and will be assigning to Administrative Agent,
for the benefit of Lender Parties, all of the "Rents" (as defined therein)
accruing to the property covered thereby. Notwithstanding any such assignments,
so long as no Default has occurred and is continuing, (i) such Restricted
Persons may continue to receive and collect from the payors of such Rents all
such Rents, subject, however, to the Liens created under the Security Documents,
which Liens are hereby affirmed and ratified, and free and clear of such Liens,
use the proceeds of the Rents, and (ii) the Administrative Agent will not notify
the obligors of such Rents or take any other action to cause proceeds thereof to
be remitted to the Administrative Agent. Upon the occurrence of a Default,
Administrative Agent may exercise all rights and remedies granted under the
Security
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Documents, including the right to obtain possession of all Rents then held by
such Restricted Persons or to receive directly from the payors of such Rents all
other Rents until such time as such Default is no longer continuing. If the
Administrative Agent shall receive any Rent proceeds from any payor at any time
other than during the continuance of a Default, then it shall notify Borrower
thereof and (i) upon request and pursuant to the instructions of Borrower, it
shall, if no Default is then continuing, remit such proceeds to the Borrower and
(ii) at the request and expense of Borrower, execute and deliver a letter to
such payors confirming Restricted Persons' right to receive and collect Rents
until otherwise notified by Administrative Agent. In no case shall any failure,
whether purposed or inadvertent, by Administrative Agent to collect directly any
such Rents constitute in any way a waiver, remission or release of any of its
rights under the Security Documents, nor shall any release of any Rents by
Administrative Agent to such Restricted Persons constitute a waiver, remission,
or release of any other Rents or of any rights of Administrative Agent to
collect other Rents thereafter.
Section 6.20. Operating Practices. Each Restricted Person shall operate
its business in a manner that is consistent with the policies and procedures
approved by the board of directors of General Partner and in effect on, and
delivered to Administrative Agent and Lenders prior to, the date hereof, and
revisions thereto referred to in the following sentence. Borrower shall review
such policies and procedures at least annually, and shall promptly recommend to
the board of directors of General Partner such revisions to such policies and
procedures as may be recommended by Restricted Persons' or, upon consultation
with Borrower and its consultants and at the request of Administrative Agent,
Administrative Agent's third party consultants, to remedy deficiencies in
internal controls, and Borrower shall promptly provide a report to Lenders
regarding such policies and procedures, including such policies and procedures
which the board of directors of General Partner could adopt and has adopted.
ARTICLE VII - Negative Covenants
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to Borrower, and to induce each Lender to
enter into this Agreement and make the Loans, Plains MLP and Borrower covenant
and agree that until the full and final payment of the Obligations and the
termination of this Agreement, unless Majority Lenders, or all Lenders as
required under Section 10.1, have previously agreed otherwise:
Section 7.1. Indebtedness. No Restricted Person will in any manner owe
or be liable for Indebtedness except:
(a) the Obligations;
(b) Indebtedness arising under Hedging Contracts (i) permitted under
Section 7.3 or (ii) consisting of options, swaps, collars and similar
instruments that relate to Petroleum Products and are either referred to in any
of clauses (i) - (iii) of Section 7.15(a) or permitted by Section 7.15(b) or
(c);
(c) Indebtedness of any Restricted Person owing to another Restricted
Person;
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(d) Liabilities with respect to obligations to deliver Petroleum
Products or to render terminaling or storage services in consideration for
advance payments to a Restricted Person provided such delivery or rendering, as
applicable, is to be made within 60 days (or, as to liquefied petroleum gases,
within 365 days) after such payment;
(e) Indebtedness under the Revolver Agreement, provided that the
principal amount of loans and face amount of letters of credit thereunder at any
one time outstanding (excluding any exposure related to Hedging Contracts
secured in connection therewith) shall not exceed $830,000,000;
(f) guaranties by any Restricted Person of (i) (A) Liabilities of any
Borrower or Guarantor which are not otherwise prohibited hereunder or (B)
Liabilities of any Wholly-Owned Subsidiary of Plains MLP not constituting
Indebtedness, (ii) 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;
(g) Indebtedness owing by Plains MLP or any other Restricted Person
under its senior unsecured privately placed or public term Indebtedness (and any
Indebtedness from time to time issued in exchange therefor or from time to time
incurred to repay or otherwise refinance, in whole or part, any Indebtedness
that was incurred pursuant to this clause (g), which Indebtedness is incurred in
compliance with the provisions of clauses (1) through (6) of this clause (g)),
provided:
(1) such Indebtedness shall not permit mandatory redemption or
mandatory prepayment by any holder thereof solely at the option of any
such holder, nor any stated maturity, in each case prior to the last
maturity date of all Loans, other than any such redemption, prepayment
or maturity of such Indebtedness which is made with the proceeds of (A)
all or any portion of other Indebtedness incurred pursuant to this
clause (g), or (B) any equity issuance of Plains MLP,
(2) the instrument governing such Indebtedness shall have no covenants
or other requirements more onerous than the Loan Documents,
(3) the aggregate outstanding face amount of such Indebtedness, without
duplication of, or regard for, the amount of any Indebtedness
theretofore incurred pursuant to this clause (g) which, in whole or
part, is being repaid or refinanced with the proceeds of Indebtedness
that is being incurred subsequent thereto pursuant to this clause (g)
and substantially contemporaneously with such repayment or refinancing,
as applicable, shall not exceed $400,000,000,
(4) all of the net proceeds of such originally issued Indebtedness up
to an aggregate amount of $400,000,000, other than any portion of such
net proceeds (A) used to pay or
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otherwise refinance, in whole or part, Indebtedness incurred pursuant
to this clause (g), or (B) which permanently replaces any Indebtedness
incurred pursuant to this clause (g) and theretofore matured or was
redeemed or paid as permitted by subclause (B) of either clause (1) or
the final proviso in this Section 7.1(g), shall be used to repay US
Loans (as defined in the Revolver Agreement) to Borrower outstanding
under the Revolver Agreement as therein provided or to make
substantially contemporaneous Permitted Acquisitions,
(5) upon the receipt of net proceeds from the original issuance of such
Indebtedness up to an aggregate amount of $400,000,000, other than any
portion of such net proceeds (A) used to pay or otherwise refinance, in
whole or part, Indebtedness incurred pursuant to this clause (g), or
(B) which permanently replaces any Indebtedness incurred pursuant to
this clause (g) and theretofore matured or was redeemed or paid as
permitted by subclause (B) of either clause (1) or the final proviso in
this Section 7.1(g), the US Commitment (as defined in the Revolver
Agreement) under the Revolver Agreement shall be reduced (as provided
in the Revolver Agreement) by an amount (the "Commitment Reduction
Amount") equal to (A) forty percent (40%) of the face amount of such
Indebtedness, which face amount shall be reduced by an amount equal to
the net proceeds from such issuance which were used to repay or
otherwise refinance, in whole or part, Indebtedness incurred pursuant
to this clause (g), if and to the extent the aggregate face amount is
less than $350,000,000, or (B) fifty percent (50%) of the face amount
of such Indebtedness, which face amount shall be reduced by an amount
equal to the net proceeds from such issuance which were used to repay
or otherwise refinance, in whole or part, Indebtedness incurred
pursuant to this clause (g), if and to the extent the aggregate face
amount of such Indebtedness is equal to or greater than $350,000,000,
provided, however, such Commitment Reduction Amount shall be reduced by
an amount equal to $50,000,000, and
(6) both immediately prior to and immediately following the
consummation of such offering or incurrence, as applicable, no Default
or Event of Default shall have occurred and be continuing;
provided, further, each Restricted Person hereby covenants and agrees that it
will not optionally redeem, or make any payment on or with respect to the
optional redemption of, such Indebtedness (or any portion thereof) prior to the
last maturity of all Loans without the written consent of Majority Lenders,
other than any such redemption or payment of such Indebtedness which was made
with the proceeds of (A) all or any portion of other Indebtedness incurred
pursuant to this clause (g) or (B) any equity issuance of Plains MLP; and
(h) other Indebtedness not to exceed in the aggregate in respect of all
Restricted Persons the principal amount of the Dollar Equivalent of $25,000,000
at any one time outstanding.
Section 7.2. Limitation on Liens. No Restricted Person will create,
assume or permit to exist (i) any Lien upon any Accounts, inventory, cash or
investment securities which constitute Collateral except (A) Permitted Inventory
Liens, (B) Liens created pursuant to the Security Documents, Liens created
pursuant to the Revolver Agreement, and Liens created pursuant to the
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"Security Documents" (as such term is defined in the Existing Agreement), (C)
statutory Liens in respect of First Purchase Crude Payables, (D) Liens of the
type described in clause (e) below in connection with any Eligible Margin
Deposit to secure Hedging Contracts permitted under Section 7.1 with the broker
that is the holder of such Eligible Margin Deposit, (E) Liens of the type
described in clauses (a), (c) and (f) below, and (F) any other Liens expressly
permitted to encumber such Collateral under any Security Document covering such
Collateral or (ii) any Lien upon any of the properties or assets other than such
Collateral which it now owns or hereafter acquires except the following (Liens,
to the extent permitted by this Section, herein called "Permitted Liens"):
(a) Liens created pursuant to this Agreement or the Security Documents,
Liens existing on the date of this Agreement and listed in the Disclosure
Schedule, and Liens created pursuant to the Revolver Agreement or the "Security
Documents" as defined in the Revolver, subject to the terms of the Intercreditor
Agreement.
(b) Liens imposed by any governmental authority for taxes, assessments
or charges not yet due or the validity of which is being contested in good faith
and by appropriate proceedings, if necessary, for which adequate reserves are
maintained on the books of any Restricted Person in accordance with GAAP;
(c) pledges or deposits of cash or securities under worker's
compensation, unemployment insurance or other social security legislation;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's, or other like Liens (including, without limitation, Liens on
property of any Restricted Person in the possession of storage facilities,
pipelines or barges) arising in the ordinary course of business for amounts
which are not more than 60 days past due or the validity of which is being
contested in good faith and by appropriate proceedings, if necessary, and for
which adequate reserves are maintained on the books of any Restricted Person in
accordance with GAAP;
(e) Liens under or with respect to accounts with brokers or
counterparties with respect to Hedging Contracts consisting of cash, commodities
or futures contracts, options, securities, instruments, and other like assets
securing only Hedging Contracts permitted under Section 7.1;
(f) deposits of cash or securities to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the use
of real property or minor imperfections in title thereto which, in the
aggregate, are not material in amount, and which do not in any case materially
detract from the value of the property subject thereto or interfere with the
ordinary conduct of the business of any Restricted Person;
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(h) Liens in respect of operating leases and Capital Leases permitted
under Section 7.1;
(i) Liens upon any property or assets acquired after the date hereof by
a Restricted Person, each of which either (i) existed on such property or asset
before the time of its acquisition and was not created in anticipation thereof,
or (ii) was created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
the cost of construction) of such property or asset; provided that no such Lien
shall extend to or cover any property or asset of a Restricted Person other than
the property or asset so acquired (or constructed) and the Indebtedness secured
thereby is permitted under Section 7.1(h) hereof; and any extension, renewal,
refinancing, refunding or replacement (or successive extensions, renewals,
refinancings, refundings or replacements), in whole or part, of the foregoing,
provided, however, that such Liens shall not cover or secure any additional
Indebtedness, obligations, property or asset;
(j) rights reserved to or vested in any governmental authority by the
terms of any right, power, franchise, grant, license or permit, or by any
provision of law, to revoke or terminate any such right, power, franchise,
grant, license or permit or to condemn or acquire by eminent domain or similar
process;
(k) rights reserved to or vested by Law in any governmental authority
to in any manner, control or regulate in any manner any of the properties of any
Restricted Person or the use thereof or the rights and interests of any
Restricted Person therein, in any manner under any and all Laws;
(l) rights reserved to the grantors of any properties of any Restricted
Person, and the restrictions, conditions, restrictive covenants and limitations,
in respect thereto, pursuant to the terms, conditions and provisions of any
rights-of-way agreements, contracts or other agreements therewith; and
(m) inchoate Liens in respect of pending litigation or with respect to
a judgment which has not resulted in an Event of Default under Section 8.1.
Section 7.3. Hedging Contracts. No Restricted Person will be a party to
or in any manner be liable on any Hedging Contract, except:
(a) Hedging Contracts entered into by a Restricted Person with the
purpose and effect of (I) fixing interest rates on a principal amount of
indebtedness of such Restricted Person that is accruing interest at a variable
rate, or (II) applying a variable rate of interest on a principal amount of
indebtedness of such Restricted Person that is accruing interest at a fixed
rate; provided that (i) the aggregate notional amount of such contracts never
exceeds one hundred percent (100%) of the anticipated outstanding principal
balance of the indebtedness to be hedged by such contracts or an average of such
principal balances calculated using a generally accepted method of matching
interest swap contracts to declining principal balances, (ii) the floating rate
index of each such contract generally matches the index used to determine the
floating rates of
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interest on the corresponding indebtedness to be hedged by such contract and
(iii) each such contract is with a counterparty or has a guarantor of the
obligation of the counterparty who (unless such counterparty is a Lender, a
"Lender" as such term is defined in the Revolver Agreement, or an Affiliate of
any Lender or "Lender" at the time such contract is entered into) at the time
the contract is made has long-term unsecured and unenhanced debt obligations
rated A or A2 or better, respectively, by either Rating Agency or is otherwise
acceptable to Majority Lenders.
(b) Hedging Contracts entered into by a Canadian Subsidiary (or by a
Restricted Person on behalf of a Canadian Subsidiary) with the purpose and
effect of fixing foreign exchange rates on its reasonably anticipated net
revenues, and not for speculative purposes, provided that (i) no such contract
fixes an exchange rate for a term of more than 5 years, (ii) the aggregate
notional amount of such contracts (determined, in the case of contracts that are
not settled on a monthly basis, by a monthly proration acceptable to
Administrative Agent) for any single month never exceeds (A) ninety percent
(90%) of the reasonably anticipated net revenues to be hedged by such contracts
plus (B) one hundred percent (100%) of the anticipated outstanding principal
balance of the indebtedness to be hedged by such contracts, and (iii) each such
contract is with a counterparty or has a guarantor of the obligation of the
counterparty who (unless such counterparty is a Lender, a "Lender" as such term
is defined in the Revolver Agreement, or an Affiliate of a Lender or "Lender" at
the time such contract is entered into) at the time the contract is made has
long-term unsecured and unenhanced debt obligations rated A or A2 or better,
respectively, by either Rating Agency or is otherwise acceptable to Majority
Lenders.
(c) Hedging Contracts relating to heating oil used to hedge price risk
for fuel requirements of the truck fleet of a Restricted Person in the ordinary
course of business.
Section 7.4. Limitation on Mergers, Issuances of Securities. Except as
expressly provided in this section, no Restricted Person will (a) enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), (b) acquire any
business or property from, or capital stock of, or be a party to any acquisition
of, any Person except for purchases of inventory and other property to be sold
or used in the ordinary course of business and Investments permitted under
Section 7.7 hereof or (c) sell, transfer, lease, exchange, alienate or otherwise
dispose of, in one transaction or a series of transactions, any part of its
business or property, whether now owned or hereafter acquired, except for sales
or transfers not prohibited by under Section 7.5 hereof. 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)
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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 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. Notwithstanding the foregoing,
Plains Marketing Canada, L.P. may issue limited partner interests to CanPet
Energy Group (USA), Inc. or CanPet Energy Group Inc., provided, such limited
partner interests shall:
(i) pay no cash dividend nor entitle the holder thereof to
any cash distribution, except upon dissolution (provided that the
foregoing shall not prevent the accrual of any such dividends or
distributions);
(ii) not entitle the holder thereof to any right to manage or
control Plains Marketing Canada, L.P. or vote with respect thereto; and
(iii) not be redeemable or exchangeable by the holder thereof
for cash or callable or subject to a put option for cash at the option
of any such holder.
Section 7.5. Limitation on Sales of Property. No Restricted Person will
sell, transfer, lease, exchange, alienate or dispose of any Collateral or any of
its material assets or properties or any material interest therein except:
(a) equipment which is worthless or obsolete or no longer
necessary or useful to the proper conduct of its business or which is replaced
by equipment of equal suitability and value;
(b) inventory (including pipeline linefill) which is sold in the
ordinary course of business on ordinary trade terms;
(c) in other property which is sold for fair consideration not in
the aggregate in excess of the Dollar Equivalent of $10,000,000 in any Fiscal
Year, the sale of which will not materially impair or diminish the value of the
Collateral or any Restricted Person's financial condition, business or
operations;
(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
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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
(e) sales or transfers, subject to the Security Documents, by a Person
(other than Borrower) that is a Subsidiary of a Restricted Person to such
Restricted Person or to a Wholly Owned Subsidiary of such Restricted Person that
is a Guarantor.
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. No Restricted Person will discount, sell, pledge or assign any notes
payable to it, accounts receivable or future income. So long as no Default then
exists, Administrative Agent will, at Borrower's request and expense, execute a
release, satisfactory to Borrower and Administrative Agent, of any Collateral so
sold, transferred, leased, exchanged, alienated or disposed of pursuant to the
clause (a), (c) or (d) of this Section.
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.
Notwithstanding the foregoing, but subject to Section 7.5, (i) Subsidiaries of
Plains MLP, Borrower, or of any Guarantor shall not be restricted, directly or
indirectly, from declaring and paying dividends or making any other
distributions to Plains MLP, Borrower, or any such Guarantor, respectively, (ii)
no Restricted Person shall be restricted from making capital contributions of
any nature to a Wholly Owned Subsidiary of such Restricted Person that is a
Guarantor, and (iii) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, Plains MLP shall not be restricted from
(A) distributing Available Cash (other than amounts required to be applied as
otherwise required in any Loan Document) to its partners in accordance with the
Partnership Agreement or (B) purchasing its partnership units on the open market
in connection with the Incentive and Option Plans.
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Section 7.7. Limitation on Investments and New Businesses. No
Restricted Person will (a) make any expenditure or commitment or incur any
obligation or enter into or engage in any transaction except in the ordinary
course of business, (b) engage directly or indirectly in any business or conduct
any operations except in connection with or incidental to its present businesses
and operations, (c) make any acquisitions of or capital contributions to or
other Investments in any Person, other than Permitted Investments and Permitted
Acquisitions, or (d) make any acquisitions of properties other than Permitted
Acquisitions. All transactions permitted under the foregoing subsections (a)
through (d), inclusive, are subject to Section 7.5.
Section 7.8. Limitation on Credit Extensions. Except for Permitted
Investments and Hedging Contracts permitted under Section 7.3(b) hereof, no
Restricted Person will extend credit, make advances or make loans other than
normal and prudent extensions of credit to customers buying goods and services
in the ordinary course of business or to another Restricted Person in the
ordinary course of business, which extensions shall not be for longer periods
than those extended by similar businesses operated in a normal and prudent
manner.
Section 7.9. Transactions with Affiliates. No Restricted Person will
engage in any material transaction with any of its Affiliates except: (a)
transactions among Plains MLP and Wholly Owned Subsidiaries of Plains MLP,
subject to the other provisions of this Agreement, (b) transactions governed by
the Affiliate Agreements, and (c) transactions entered into in the ordinary
course of business of such Restricted Person on terms which are no less
favorable to such Restricted Person than those which would have been obtainable
at the time in arm's-length transactions with Persons other than such
Affiliates.
Section 7.10. Prohibited Contracts. Except as expressly provided for in
the Loan Documents and 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, no
Restricted Person will, directly or indirectly, enter into, create, or otherwise
allow to exist any contract or other consensual restriction on the ability of
any Subsidiary of Plains MLP, including but not limited to Borrower and any
Subsidiary of Borrower to: (a) pay dividends or make other distributions to
Borrower or Plains MLP, (b) redeem equity interests held in it by Borrower or
Plains MLP, (c) repay loans and other indebtedness owing by it to Borrower or
Plains MLP, or (d) transfer any of its assets to Borrower or Plains MLP. No
Restricted Person will enter into any "take-or-pay" contract or other contract
or arrangement for the purchase of goods or services which obligates it to pay
for such goods or service regardless of whether they are delivered or furnished
to it other than contracts for pipeline capacity or for services in either case
reasonably anticipated to be utilized in the ordinary course of business. No
Restricted Persons will amend, modify or release any of the Affiliate
Agreements. No Restricted Person will amend or permit any amendment to any
contract or lease which releases, qualifies, limits, makes contingent or
otherwise detrimentally affects the rights and benefits of Administrative Agent
or any Lender under or acquired pursuant to any Security Documents. No ERISA
Affiliate will incur any obligation to contribute to any "multiemployer plan" as
defined in Section 4001 of ERISA that is subject to Title IV of ERISA.
Section 7.11. Current Ratio. The ratio of (i) the sum of Plains MLP's
Consolidated current assets plus the Revolver Availability to (ii) Plains MLP's
Consolidated current liabilities
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will never be less than 1.0 to 1.0. For purposes of this section, Plains MLP's
Consolidated current liabilities will be calculated without including (a) any
payments of principal on the Notes or on the notes or banker's acceptances under
the Revolver Agreement which are required to be repaid within one year from the
time of calculation and (b) all Liabilities arising under permitted Hedging
Contracts.
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:
(i) prior to the Equilon Acquisition Closing Date:
4.00 to 1;
(ii) on and after the Equilon Acquisition Closing Date but
prior to the Private/Public Debt Issuance Date: (I) 5.00 to 1, in the
case of any determination during the period from the Equilon
Acquisition Closing Date through and including March 30, 2003, and (II)
4.00 to 1, in the case of any determination thereafter;
(iii) on and after the Equilon Acquisition Closing Date and on
and after the Private/Public Debt Issuance Date: 5.25 to 1; and, in
addition, the Secured Debt Coverage Ratio will not be greater than 4.00
to 1.
As used herein, "Debt Coverage Ratio" means the ratio of (a) Consolidated Funded
Indebtedness to (b) Consolidated EBITDA, and "Secured Debt Coverage Ratio" means
the ratio of (a) Consolidated Secured Indebtedness to (b) Consolidated EBITDA,
in each case 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
acquisition by Borrower and Plains Marketing Canada LP of all or substantially
all of the assets of CanPet Energy Group (USA) Inc. and CanPet Energy Group,
Inc., respectively 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 (1)
cost reductions
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specifically identified at the time of disposition, acquisition, consolidation
or merger that are attributable to personnel reductions, non-recurring
maintenance and environmental costs and allocated corporate overhead, (2) not
more than fifty percent (50%) of Consolidated EBITDA from Plains Terminals that
are dedicated to commercial activities of the subject assets, or (3) with the
consent of Majority Lenders.
Section 7.13. Interest Coverage Ratio. The ratio of (a) Consolidated EBITDA
to (b) Interest Expense for each four Fiscal Quarter period ending on or after
March 31, 2001 will not be less than 2.75 to 1.0.
Section 7.14. Debt to Capital Ratio. The ratio of (a) all Consolidated
Funded Indebtedness to (b) the sum of Consolidated Funded Indebtedness plus
Consolidated Net Worth will never be greater than:
(i) prior to the Equilon Acquisition Closing Date: 0.70 to 1 at any
time prior to and including December 31, 2002, and 0.65 to 1 at any time
thereafter; and
(ii) on and after the Equilon Acquisition Closing Date: 0.70 to 1 at
any time prior to and including March 30, 2003, and 0.65 to 1 at any time
thereafter.
Section 7.15. Open Position; Certain Permitted Financial Instruments; NYMEX
Transactions.
(a) Open Position. No Restricted Person shall at any time have any Open
Positions; provided, however, that a Restricted Person may have:
(i) Physical inventories of Petroleum Products (A) consisting of
tank bottoms and pipeline linefill requirements, in each case classified as
a long-term asset, (B) working inventory of up to (i) 1,400,000 barrels
prior to the Equilon Acquisition Closing Date and (ii) 1,600,000 barrels on
and after the Equilon Acquisition Closing Date in the aggregate at any
time, (C) excess inventory of up to 200,000 barrels in the aggregate at any
time resulting from crude gathering receipts in excess of scheduled
quantities, provided that such Restricted Person shall establish an
Offsetting Position with respect to such quantities within five business
days following identification of such inventory, but in any event not later
than the 20/th/ day following the month in which such excess volumes were
received and (D) Hedged Eligible Inventory.
(ii) Floating Price Contracts to purchase or sell Petroleum Products
in the Current Trading Month; provided that, such Floating Price Contracts
either (A) have an Offsetting Position by the 26th day of the month
preceding the month of receipt or delivery, or (B) are scheduled to be
stored at a Plains Terminal or in pipelines Currently Approved by Majority
Lenders and are hedged in the delivery month with NYMEX contracts; and
further provided that such Floating Price Contracts relating to the sale of
Petroleum Products for the Current Trading Month do not exceed purchases by
more than 15,000 barrels per day.
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(iii) Floating Price Contracts to purchase or sell Petroleum
Products to be received or delivered after the Current Trading Month, but
within the twelve months following the Current Trading Month provided that
(A) such contracts are at the then market price and (B) at any point in
time the sum of (x) net realized losses relating to such contracts within
the preceding twelve months (excluding Physically Covered Near Term
Floating Price Contract Losses) and (y) mark to market exposure relating to
such contracts (excluding aggregate mark to market exposure of up to the
Dollar Equivalent of $20,000,000 relating to Near Term Floating Price
Contracts) does not, at any time, exceed the Dollar Equivalent of
$12,500,000.
As used herein, "Current Trading Month" means (i) with respect to the first
twenty-five days of any calendar month, the next following calendar month and
(ii) with respect to the period from the 26/th/ day of a calendar month through
the last day of such month, the second calendar month next following such month
(for example, for the period from January 26/th/ through February 25/th/, the
Current Trading Month is March), "Floating Price Contract" means (i) a purchase
or sale contract based upon a daily index such as a posted price or NYMEX price
from time to time in effect during the delivery month and (ii) a NYMEX spread
transaction in which the length of time between the offsetting purchase and sale
obligations do not exceed fourteen months, "Physically Covered Near Term
Floating Price Contract Losses" means net realized losses incurred in the
Current Trading Month with respect to Near Term Floating Price Contracts entered
into prior to such Current Trading Month, for which the Company expects to have
an offsetting physical position in the delivery month originally specified in
such Near Term Floating Price Contract, and "Near Term Floating Price Contract"
means (A) Floating Price Contracts within the First Trading Month following the
Current Trading Month, covering volumes up to 60% of projected crude gathering
receipts for crude under 30-day evergreen floating price contracts for the First
Trading Month; and (B) Floating Price Contracts within the Second Trading Month
following the Current Trading Month, covering volumes up to 40% of projected
crude gathering receipts for crude under 30-day evergreen floating price
contracts for the Second Trading Month. Using the same example as that used for
Current Trading Month, the First Trading Month following the Current Trading
Month for the same period is April and the Second Trading Month following the
Current Trading Month for the same period is May.
(b) Certain Permitted Financial Instruments. No Restricted Person will
write (i.e. sell) or otherwise participate in any swap, collar or similar
agreement relating to Petroleum Products, or write (i.e. sell) any option, in
each case without regard to NYMEX contracts, unless, with respect thereto, (i)
such Restricted Person has an Offsetting Position, and (ii) if the nature of the
swap, collar or similar agreement obligates, by its terms, the counterparty to
perform obligations thereunder in favor of a Restricted Person, such
counterparty (or guarantor to the obligations of such counter-party) at the time
such financial instrument is made (A) has one or more long term unsecured and
unenhanced debt obligations rated A or A2 or better, respectively, by either
Rating Agency, or (B) is a Lender, a "Lender" as such term is defined in the
Revolver Agreement, or an Affiliate of a Lender or "Lender", or (C) is listed in
the Disclosure Schedule.
(c) NYMEX Transactions. No Restricted Person will enter in to any NYMEX
contracts that are time-spread positions to each other, except (i) in the case
where the sale obligation is in the future month of the purchase obligation,
where both (A) the length of time
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between the purchase and sale contracts does not exceed sixty months and (B) the
volume does not in the aggregate exceed 50% of the Plains Terminals' storage
capacity and (ii) in the case where the purchase obligation is in the future
month of the sale obligation, where the length of time between the sale and
purchase contracts does not exceed fourteen months. No Restricted Person will
convert a NYMEX position to a physical position by way of an "exchange for
physicals" or an "alternative delivery procedure"unless the credit extended in
connection with such physical position would comply with the credit requirements
of the definition of "Approved Eligible Receivables".
Section 7.16. Redelivery of Borrowing Base Report. If any contract gives
rise to an "Eligible Receivable" that is reflected in a Borrowing Base Report
representing the obligation to deliver Petroleum Products in the month next
succeeding the month in which the Borrowing Base Report is delivered, and such
contract is modified, sold or exchanged in any way that would negatively affect
the Borrowing Base, then Borrower shall immediately (i) deliver to
Administrative Agent a revised Borrowing Base Report satisfactory to
Administrative Agent, which Administrative Agent shall thereafter furnish to
Lenders, and (ii) make any prepayment as may be required under Section 2.6
resulting from such reduced Borrowing Base.
Section 7.17. 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 7.17.
(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) 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
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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 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 7.17.
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 7.17.
Section 7.18. Certain Permitted Guaranties. Notwithstanding anything
contained in any Loan Document, no Restricted Person shall be prohibited from
guaranteeing (a) any Liability of any Borrower or Guarantor or (b) any Liability
of any Wholly-Owned Subsidiary of Plains MLP that does not constitute
Indebtedness, if the incurrence of such Liability by such primary obligor shall
not otherwise be prohibited hereunder.
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ARTICLE VIII - Events of Default and Remedies
Section 8.1. Events of Default. Each of the following events constitutes an
Event of Default under this Agreement:
(a) Any Restricted Person fails to pay the principal component of any Loan
or any reimbursement obligation with respect to any Letter of Credit when due
and payable, whether at a date for the payment of a fixed installment or as a
contingent or other payment becomes due and payable or as a result of
acceleration or otherwise;
(b) Any Restricted Person fails to pay any Obligation (other than the
Obligations in subsection (a) above) when due and payable, whether at a date for
the payment of a fixed installment or as a contingent or other payment becomes
due and payable or as a result of acceleration or otherwise, within three
Business Days after the same becomes due;
(c) Any event defined as a "default" or "event of default" in any Loan
Document occurs, and the same is not remedied within the applicable period of
grace (if any) provided in such Loan Document;
(d) Any Restricted Person fails to duly observe, perform or comply with any
covenant, agreement or provision of Section 6.4 or Article VII;
(e) Any Restricted Person fails (other than as referred to in subsections
(a), (b), (c) or (d) above) to duly observe, perform or comply with any
covenant, agreement, condition or provision of any Loan Document to which it is
a party, and such failure remains unremedied for a period of thirty (30) days
after notice of such failure is given by Administrative Agent to Borrower;
(f) Any representation or warranty previously, presently or hereafter made
in writing by or on behalf of any Restricted Person in connection with any Loan
Document shall prove to have been false or incorrect in any material respect on
any date on or as of which made, or any Loan Document at any time ceases to be
valid, binding and enforceable as warranted in Section 5.5 for any reason other
than its release or subordination by Administrative Agent;
(g) Any Restricted Person shall default in the payment when due of any
principal of or interest on any of its other Indebtedness in excess of the
Dollar Equivalent of $2,500,000 in the aggregate (other than Indebtedness the
validity of which is being contested in good faith by appropriate proceedings
and for which adequate reserves with respect thereto are maintained on the books
of such Restricted Person in accordance with GAAP), or any event specified in
any note, agreement, indenture or other document evidencing or relating to any
such Indebtedness shall occur if the effect of such event is to cause, or (with
the giving of any notice or the lapse of time or both) to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in full
(whether by redemption, purchase, offer to purchase or otherwise), prior to its
stated maturity;
(h) Either (i) any "accumulated funding deficiency" (as defined in Section
412(a) of the Code) in excess of $500,000 exists with respect to any ERISA Plan,
whether or not waived by
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the Secretary of the Treasury or his delegate, or (ii) any Termination Event
occurs with respect to any ERISA Plan and the then current value of such ERISA
Plan's benefit liabilities exceeds the then current value of such ERISA Plan's
assets available for the payment of such benefit liabilities by more than
$500,000 (or in the case of a Termination Event involving the withdrawal of a
substantial employer, the withdrawing employer's proportionate share of such
excess exceeds such amount);
(i) GP LLC or General Partner or any Restricted Person:
(i) has entered against it of a judgment, decree or order
for relief by a Tribunal of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or
other similar Law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, the Bankruptcy and Insolvency
Act (Canada) or the Companies' Creditors Arrangement Act (Canada), as
from time to time amended, or has any such proceeding commenced against
it, in each case, which remains undismissed for a period of sixty days;
or
(ii) commences a voluntary case under any applicable
bankruptcy, insolvency or similar Law now or hereafter in effect,
including the federal Bankruptcy Code, the Bankruptcy and Insolvency
Act (Canada) or the Companies' Creditors Arrangement Act (Canada), as
from time to time amended; or applies for or consents to the entry of
an order for relief in an involuntary case under any such Law; or makes
a general assignment for the benefit of creditors; or is generally
unable to pay (or admits in writing its inability to so pay) its debts
as such debts become due; or takes corporate or other action to
authorize any of the foregoing; or
(iii) has entered against it the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of all or a substantial part of its
assets in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor
discharged within sixty days after the making thereof, or such
appointment or taking possession is at any time consented to, requested
by, or acquiesced to by it; or
(iv) has entered against it the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any part of the Collateral of a
value in excess of the Dollar Equivalent of $2,500,000 in a proceeding
brought against or initiated by it, and such appointment or taking
possession is neither made ineffective nor discharged within sixty days
after the making thereof, or such appointment or taking possession is
at any time consented to, requested by, or acquiesced to by it; or
(v) has entered against it a final judgment for the payment
of money in excess of the Dollar Equivalent of $2,500,000 (in each case
not covered by insurance satisfactory to Administrative Agent in its
discretion), unless the same is stayed or discharged within thirty days
after the date of entry thereof or an appeal or appropriate proceeding
for
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review thereof is taken within such period and a stay of execution
pending such appeal is obtained; or
(vi) suffers a writ or warrant of attachment or any similar
process to be issued by any Tribunal against all or any substantial
part of its assets or any part of the Collateral of a value in excess
of the Dollar Equivalent of $2,500,000, and such writ or warrant of
attachment or any similar process is not stayed or released within
thirty days after the entry or levy thereof or after any stay is
vacated or set aside;
(j) GP LLC or General Partner shall default in the payment when due of
any principal of or interest on any of its Indebtedness in excess of $1,000,000
in the aggregate, or any event specified in any note, agreement, indenture or
other document evidencing or relating to any such Indebtedness shall occur if
the effect of such event is to cause, or (with the giving of any notice or the
lapse of time or both) to permit the holder or holders of such Indebtedness (or
a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity;
(k) Any Change in Control occurs; or
(l) Any Material Market Open Position Loss occurs.
Upon the occurrence of an Event of Default described in subsection (i)(i),
(i)(ii) or (i)(iii) of this section with respect to Borrower or Plains MLP, all
of the Obligations shall thereupon be immediately due and payable, without
demand, presentment, notice of demand or of dishonor and nonpayment, protest,
notice of protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are
hereby expressly waived by Borrower and each Restricted Person who at any time
ratifies or approves this Agreement. Upon any such acceleration, any obligation
of any Lender to make any further Loans and any obligation of LC Issuer to issue
Letters of Credit hereunder shall be permanently terminated. During the
continuance of any other Event of Default, Administrative Agent at any time and
from time to time may (and upon written instructions from Majority Lenders,
Administrative Agent shall), without notice to Borrower or any other Restricted
Person, do either or both of the following: (1) terminate any obligation of
Lenders to make Loans hereunder and any obligation of LC Issuer to issue Letters
of Credit hereunder, and (2) declare any or all of the Obligations immediately
due and payable, and all such Obligations shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate,
declaration or notice of acceleration, or any other notice or declaration of any
kind, all of which are hereby expressly waived by Borrower and each Restricted
Person who at any time ratifies or approves this Agreement.
Section 8.2. Remedies. If any Default shall occur and be continuing,
each Lender Party may protect and enforce its rights under the Loan Documents by
any appropriate proceedings, including proceedings for specific performance of
any covenant or agreement contained in any Loan Document, and each Lender Party
may enforce the payment of any Obligations due it or enforce any other legal or
equitable right which it may have. All rights, remedies and powers
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conferred upon Lender Parties under the Loan Documents shall be deemed
cumulative and not exclusive of any other rights, remedies or powers available
under the Loan Documents or at Law or in equity.
ARTICLE IX - Administrative Agent
Section 9.1. Appointment and Authority. Each Lender Party hereby
irrevocably authorizes Administrative Agent, and Administrative Agent hereby
undertakes, to receive payments of principal, interest and other amounts due
hereunder as specified herein and to take all other actions and to exercise such
powers under the Loan Documents as are specifically delegated to Administrative
Agent by the terms hereof or thereof, together with all other powers reasonably
incidental thereto. The relationship of Administrative Agent to the other Lender
Parties is only that of one commercial lender acting as administrative agent for
others, and nothing in the Loan Documents shall be construed to constitute
Administrative Agent a trustee or other fiduciary for any Lender Party or any
holder of any participation in a Note nor to impose on Administrative Agent
duties and obligations other than those expressly provided for in the Loan
Documents. With respect to any matters not expressly provided for in the Loan
Documents and any matters which the Loan Documents place within the discretion
of Administrative Agent, Administrative Agent shall not be required to exercise
any discretion or take any action, and it may request instructions from Lenders
with respect to any such matter, in which case it shall be required to act or to
refrain from acting (and shall be fully protected and free from liability to all
Lender Parties in so acting or refraining from acting) upon the instructions of
Majority Lenders (including itself), provided, however, that Administrative
Agent shall not be required to take any action which exposes it to a risk of
personal liability that it considers unreasonable or which is contrary to the
Loan Documents or to applicable Law. Upon receipt by Administrative Agent from
Borrower of any communication calling for action on the part of Lenders or upon
notice from Borrower or any Lender to Administrative Agent of any Default or
Event of Default, Administrative Agent shall promptly notify each other Lender
thereof. Each Lender hereby expressly authorizes Administrative Agent, on behalf
of such Lender, to execute and deliver the Intercreditor Agreement in the form
attached hereto as Exhibit K.
Section 9.2. Exculpation, Administrative Agent's Reliance, Etc. Neither
Administrative Agent nor any of its directors, officers, agents, attorneys, or
employees shall be liable for any action taken or omitted to be taken by any of
them under or in connection with the Loan Documents, INCLUDING THEIR NEGLIGENCE
OF ANY KIND, except that each shall be liable for its own gross negligence or
willful misconduct. Without limiting the generality of the foregoing,
Administrative Agent (a) may treat the payee of any Note as the holder thereof
until Administrative Agent receives written notice of the assignment or transfer
thereof in accordance with this Agreement, signed by such payee and in form
satisfactory to Administrative Agent; (b) may consult with legal counsel
(including counsel for Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any other
Lender Party and shall not be responsible to any other Lender Party for any
statements, warranties or representations made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of the
Loan Documents
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on the part of any Restricted Person or to inspect the property (including the
books and records) of any Restricted Person; (e) shall not be responsible to any
other Lender Party for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any instrument or
document furnished in connection therewith; (f) may rely upon the
representations and warranties of each Restricted Person or Lender Party in
exercising its powers hereunder; and (g) shall incur no liability under or in
respect of the Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing (including any facsimile, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper Person or Persons.
Section 9.3. Credit Decisions. Each Lender Party acknowledges that it
has, independently and without reliance upon any other Lender Party, made its
own analysis of Borrower and the transactions contemplated hereby and its own
independent decision to enter into this Agreement and the other Loan Documents.
Each Lender Party also acknowledges that it will, independently and without
reliance upon any other Lender Party and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents.
Section 9.4. Indemnification. Each Lender agrees to indemnify
Administrative Agent (to the extent not reimbursed by Borrower within ten (10)
days after demand) from and against such Lender's Percentage Share of any and
all liabilities, obligations, claims, losses, damages, penalties, fines,
actions, judgments, suits, settlements, costs, expenses or disbursements
(including reasonable fees of attorneys, accountants, experts and advisors) of
any kind or nature whatsoever (in this section collectively called "liabilities
and costs") which to any extent (in whole or in part) may be imposed on,
incurred by, or asserted against Administrative Agent growing out of, resulting
from or in any other way associated with any of the Collateral, the Loan
Documents and the transactions and events (including the enforcement thereof) at
any time associated therewith or contemplated therein (whether arising in
contract or in tort or otherwise and including any violation or noncompliance
with any Environmental Laws by any Person or any liabilities or duties of any
Person with respect to Hazardous Materials found in or released into the
environment).
The foregoing indemnification shall apply whether or not such liabilities and
costs are in any way or to any extent owed, in whole or in part, under any claim
or theory of strict liability or caused, in whole or in part, by any negligent
act or omission of any kind by Administrative Agent,
provided only that no Lender shall be obligated under this section to indemnify
Administrative Agent for that portion, if any, of any liabilities and costs
which is proximately caused by Administrative Agent's own individual gross
negligence or willful misconduct, as determined in a final judgment. Cumulative
of the foregoing, each Lender agrees to reimburse Administrative Agent promptly
upon demand for such Lender's Percentage Share of any costs and expenses to be
paid to Administrative Agent by Borrower under Section 10.4(a) to the extent
that
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Administrative Agent is not timely reimbursed for such expenses by Borrower as
provided in such section. As used in this section the term "Administrative
Agent" shall refer not only to the Person designated as such in Section 1.1 but
also to each director, officer, agent, attorney, employee, representative and
Affiliate of such Person.
Section 9.5. Rights as Lender. In its capacity as a Lender,
Administrative Agent shall have the same rights and obligations as any Lender
and may exercise such rights as though it were not Administrative Agent.
Administrative Agent may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with any
Restricted Person or their Affiliates, all as if it were not Administrative
Agent hereunder and without any duty to account therefor to any other Lender.
Section 9.6. Sharing of Set-Offs and Other Payments. Each Lender Party
agrees that if it shall, whether through the exercise of rights under Security
Documents or rights of banker's lien, set off, or counterclaim against Borrower
or otherwise, obtain payment of a portion of the aggregate Obligations owed to
it which, taking into account all distributions made by Administrative Agent
under Section 3.1, causes such Lender Party to have received more than it would
have received had such payment been received by Administrative Agent and
distributed pursuant to Section 3.1, then (a) it shall be deemed to have
simultaneously purchased and shall be obligated to purchase interests in the
Obligations as necessary to cause all Lender Parties to share all payments as
provided for in Section 3.1, and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that Administrative Agent and all
Lender Parties share all payments of Obligations as provided in Section 3.1;
provided, however, that nothing herein contained shall in any way affect the
right of any Lender Party to obtain payment (whether by exercise of rights of
banker's lien, set-off or counterclaim or otherwise) of indebtedness other than
the Obligations. Borrower expressly consents to the foregoing arrangements and
agrees that any holder of any such interest or other participation in the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
to the fullest extent permitted by Law and, subject to the provisions of Section
6.16, exercise any and all rights of banker's lien, set-off, or counterclaim as
fully as if such holder were a holder of the Obligations in the amount of such
interest or other participation. If all or any part of any funds transferred
pursuant to this section is thereafter recovered from the seller under this
section which received the same, the purchase provided for in this section shall
be deemed to have been rescinded to the extent of such recovery, together with
interest, if any, if interest is required pursuant to the order of a Tribunal to
be paid on account of the possession of such funds prior to such recovery.
Section 9.7. Investments. Whenever Administrative Agent in good faith
determines that it is uncertain about how to distribute to Lender Parties any
funds which it has received, or whenever Administrative Agent in good faith
determines that there is any dispute among Lender Parties about how such funds
should be distributed, Administrative Agent may choose to defer distribution of
the funds which are the subject of such uncertainty or dispute. If
Administrative Agent in good faith believes that the uncertainty or dispute will
not be promptly resolved, or if Administrative Agent is otherwise required to
invest funds pending distribution to Lender Parties, Administrative Agent shall
invest such funds pending distribution; all interest on any such Investment
shall be distributed upon the distribution of such Investment and in the same
proportion and to the same Persons as such Investment. All moneys received by
Administrative
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Agent for distribution to Lender Parties (other than to the Person who is
Administrative Agent in its separate capacity as a Lender Party) shall be held
by Administrative Agent pending such distribution solely as Administrative Agent
for such Lender Parties, and Administrative Agent shall have no equitable title
to any portion thereof.
Section 9.8. Benefit of Article IX. The provisions of this Article are
intended solely for the benefit of Lender Parties, and no Restricted Person
shall be entitled to rely on any such provision or assert any such provision in
a claim or defense against any Lender (other than in relation to the reference
to Section 6.16 contained in Section 9.6 or the right to reasonably approve a
successor Administrative Agent under Section 9.9). Lender Parties may waive or
amend such provisions as they desire without any notice to or consent of
Borrower or any other Restricted Person.
Section 9.9. Resignation. Administrative Agent may resign at any time
by giving written notice thereof to Lenders and Borrower. Each such notice shall
set forth the date of such resignation. Upon any such resignation Majority
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval of Borrower, unless a Default has occurred and is
continuing, which approval will not be unreasonably withheld. A successor must
be appointed for any retiring Administrative Agent, and such Administrative
Agent's resignation shall become effective when such successor accepts such
appointment. If, within thirty days after the date of the retiring
Administrative Agent's resignation, no successor Administrative Agent has been
appointed and has accepted such appointment, then the retiring Administrative
Agent may appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed to conduct a banking or trust business under the Laws
of the United States of America or of any state thereof. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under the Loan
Documents.
Section 9.10. Other Agents. Neither the Syndication Agent nor the
Documentation Agent ("Co-Agents"), in such capacities, shall have any duties or
responsibilities or incur any liabilities in such agency capacities (as opposed
to its capacity as a Lender) under or in connection with this Agreement or under
any of the other Loan Documents. The relationship between Borrower, on the one
hand, and the Co-Agents and Administrative Agent, on the other hand, shall be
solely that of borrower and lender. None of the Co-Agents shall have any
fiduciary responsibilities to Borrower or any of its Affiliates. None of the
Co-Agents undertakes any responsibility to Borrower or any of its respective
Affiliates to review or inform Borrower of any matter in connection with any
phase of Borrower's or such Affiliate's business or operations.
ARTICLE X - Miscellaneous
Section 10.1. Waivers and Amendments; Acknowledgments.
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(a) Waivers and Amendments. No failure or delay (whether by course of
conduct or otherwise) by any Lender in exercising any right, power or remedy
which such Lender Party may have under any of the Loan Documents shall operate
as a waiver thereof or of any other right, power or remedy, nor shall any single
or partial exercise by any Lender Party of any such right, power or remedy
preclude any other or further exercise thereof or of any other right, power or
remedy. No waiver of any provision of any Loan Document and no consent to any
departure therefrom shall ever be effective unless it is in writing and signed
as provided below in this section, and then such waiver or consent shall be
effective only in the specific instances and for the purposes for which given
and to the extent specified in such writing. No notice to or demand on any
Restricted Person shall in any case of itself entitle any Restricted Person to
any other or further notice or demand in similar or other circumstances. This
Agreement and the other Loan Documents set forth the entire understanding
between the parties hereto with respect to the transactions contemplated herein
and therein and supersede all prior discussions and understandings with respect
to the subject matter hereof and thereof, and no waiver, consent, release,
modification or amendment of or supplement to this Agreement or the other Loan
Documents shall be valid or effective against any party hereto unless the same
is in writing and signed by (i) if such party is Borrower, by Borrower, (ii) if
such party is Administrative Agent or LC Issuer, by such party, and (iii) if
such party is a Lender, by such Lender or by Administrative Agent on behalf of
Lenders with the written consent of Majority Lenders (which consent has already
been given as to the termination of the Loan Documents as provided in Section
10.9). Notwithstanding the foregoing or anything to the contrary herein,
Administrative Agent shall not, without the prior consent of each individual
Lender, execute and deliver on behalf of such Lender any waiver or amendment
which would: (1) waive any of the conditions specified in Article IV (provided
that Administrative Agent may in its discretion withdraw any request it has made
under Section 4.2(f)), (2) increase the Percentage Share of any such Lender or
the maximum amount any such Lender is committed to fund in respect of Letter of
Credit Obligations and Loans or subject such Lender to any additional
obligations, (3) reduce any fees payable to such Lender hereunder, or the
principal of, or interest on, such Lender's Note, (4) change any date fixed for
any payment of any such fees, principal or interest, (5) amend the definition
herein of "Borrowing Base" or any of the terms used in that definition, (6)
amend the definition herein of "Majority Lenders" or otherwise change the
aggregate amount of Percentage Shares which is required for Administrative
Agent, Lenders or any of them to take any particular action under the Loan
Documents, (7) release Borrower from its obligation to pay such Lender's Note or
any Guarantor from its guaranty of such payment, or (8) release any Collateral,
except such releases relating to sales of property permitted under Section 7.5.
(b) Acknowledgments and Admissions. Borrower hereby represents,
warrants, acknowledges and admits that (i) it has been advised by counsel in the
negotiation, execution and delivery of the Loan Documents to which it is a
party, (ii) it has made an independent decision to enter into this Agreement and
the other Loan Documents to which it is a party, without reliance on any
representation, warranty, covenant or undertaking by Administrative Agent or any
other Lender Party, whether written, oral or implicit, other than as expressly
set out in this Agreement or in another Loan Document delivered on or after the
date hereof, (iii) there are no representations, warranties, covenants,
undertakings or agreements by any Lender Party as to the Loan Documents except
as expressly set out in this Agreement or in another Loan Document delivered on
or after the date hereof, (iv) no Lender Party has any fiduciary obligation
toward
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Borrower with respect to any Loan Document or the transactions contemplated
thereby, (v) the relationship pursuant to the Loan Documents between Borrower
and the other Restricted Persons, on one hand, and each Lender Party, on the
other hand, is and shall be solely that of debtor and creditor, respectively,
(vi) no partnership or joint venture exists with respect to the Loan Documents
between any Restricted Person and any Lender Party, (vii) Administrative Agent
is not Borrower's Administrative Agent, but Administrative Agent for Lenders,
(viii) should an Event of Default or Default occur or exist, each Lender Party
will determine in its sole discretion and for its own reasons what remedies and
actions it will or will not exercise or take at that time, (ix) without limiting
any of the foregoing, Borrower is not relying upon any representation or
covenant by any Lender Party, or any representative thereof, and no such
representation or covenant has been made, that any Lender Party will, at the
time of an Event of Default or Default, or at any other time, waive, negotiate,
discuss, or take or refrain from taking any action permitted under the Loan
Documents with respect to any such Event of Default or Default or any other
provision of the Loan Documents, and (x) all Lender Parties have relied upon the
truthfulness of the acknowledgments in this section in deciding to execute and
deliver this Agreement and to become obligated hereunder.
(c) Representation by Lenders. Each Lender hereby represents that it
will acquire its Note for its own account in the ordinary course of its
commercial lending business; however, the disposition of such Lender's property
shall at all times be and remain within its control and, in particular and
without limitation, such Lender may sell or otherwise transfer its Note, any
participation interest or other interest in its Note, or any of its other rights
and obligations under the Loan Documents subject to compliance with Sections
10.5(b) through (f), inclusive, and applicable Law.
(d) Joint Acknowledgment. This written Agreement and the other Loan
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties.
There are no unwritten oral agreements between the parties.
(e) Annual Rates of Interest. For the purposes of the Interest Act
(Canada), whenever interest payable pursuant to this Agreement is calculated on
the basis of a period other than a calendar year (in this Section 10.1(e), the
"Interest Period"), each rate of interest determined pursuant to such
calculation expressed as an annual rate is equivalent to such rate as so
determined multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by the number of days in the Interest
Period.
Section 10.2. Survival of Agreements; Cumulative Nature. All of
Restricted Persons' various representations, warranties, covenants and
agreements in the Loan Documents shall survive the execution and delivery of
this Agreement and the other Loan Documents and the performance hereof and
thereof, including the making or granting of the Loans and the delivery of the
Notes and the other Loan Documents, and shall further survive until all of the
Obligations are paid in full to each Lender Party and all of Lender Parties'
obligations to Borrower are terminated. All statements and agreements contained
in any certificate or other instrument
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delivered by any Restricted Person to any Lender Party under any Loan Document
shall be deemed representations and warranties by Borrower or agreements and
covenants of Borrower under this Agreement. The representations, warranties,
indemnities, and covenants made by Restricted Persons in the Loan Documents, and
the rights, powers, and privileges granted to Lender Parties in the Loan
Documents, are cumulative, and, except for expressly specified waivers and
consents, no Loan Document shall be construed in the context of another to
diminish, nullify, or otherwise reduce the benefit to any Lender Party of any
such representation, warranty, indemnity, covenant, right, power or privilege.
In particular and without limitation, no exception set out in this Agreement to
any representation, warranty, indemnity, or covenant herein contained shall
apply to any similar representation, warranty, indemnity, or covenant contained
in any other Loan Document, and each such similar representation, warranty,
indemnity, or covenant shall be subject only to those exceptions which are
expressly made applicable to it by the terms of the various Loan Documents.
Section 10.3. Notices. All notices, requests, consents, demands and
other communications required or permitted under any Loan Document shall be in
writing, unless otherwise specifically provided in such Loan Document (provided
that Administrative Agent may give telephonic notices to the other Lender
Parties), and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by facsimile or other electronic transmission, by delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, to Borrower and Restricted Persons at the address of
Borrower specified on the signature pages hereto and to each Lender Party at its
address specified on the signature pages hereto (unless changed by similar
notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address provided
herein, (b) in the case of facsimile or other electronic transmission, upon
receipt, or (c) in the case of registered or certified United States mail, three
days after deposit in the mail; provided, however, that no Borrowing Notice or
Continuation/Conversion Notice shall become effective until actually received by
Administrative Agent.
Section 10.4. Payment of Expenses; Indemnity.
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(a) Payment of Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, Borrower will promptly (and in any event,
within 30 days after any invoice or other statement or notice) pay: (i) all
transfer, stamp, mortgage, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Loan Documents or any other document referred to
herein or therein, (ii) all reasonable costs and expenses incurred by or on
behalf of Administrative Agent (including attorneys' fees, consultants' fees and
engineering fees, travel costs and miscellaneous expenses) in connection with
(1) the negotiation, preparation, execution and delivery of the Loan Documents,
and any and all consents, waivers or other documents or instruments relating
thereto, (2) the filing, recording, refiling and re-recording of any Loan
Documents and any other documents or instruments or further assurances required
to be filed or recorded or refiled or re-recorded by the terms of any Loan
Document, (3) the borrowings hereunder and other action reasonably required in
the course of administration hereof, (4) monitoring or confirming (or
preparation or negotiation of any document related to) Borrower's compliance
with any covenants or conditions contained in this Agreement or in any Loan
Document, and (iii) all reasonable costs and expenses incurred by or on behalf
of any Lender Party (including attorneys' fees, consultants' fees and accounting
fees) in connection with the defense or enforcement of any of the Loan Documents
(including this section) or the defense of any Lender Party's exercise of its
rights thereunder. In addition to the foregoing, until all Obligations have been
paid in full, Borrower will also pay or reimburse Administrative Agent for all
reasonable out-of-pocket costs and expenses of Administrative Agent or its
agents or employees in connection with the continuing administration of the
Loans and the related due diligence of Administrative Agent, including travel
and miscellaneous expenses and fees and expenses of Administrative Agent's
outside counsel, reserve engineers and consultants engaged in connection with
the Loan Documents.
(b) Indemnity. Borrower agrees to indemnify each Lender Party, upon
demand, from and against any and all liabilities, obligations, claims, losses,
damages, penalties, fines, actions, judgments, suits, settlements, costs,
expenses or disbursements (including reasonable fees of attorneys, accountants,
experts and advisors) of any kind or nature whatsoever (in this section
collectively called "liabilities and costs") which to any extent (in whole or in
part) may be imposed on, incurred by, or asserted against such Lender Party
growing out of, resulting from or in any other way associated with any of the
Collateral, the Loan Documents and the transactions and events (including the
enforcement or defense thereof) at any time associated therewith or contemplated
therein whether arising in contract or in tort or otherwise and including any
violation or noncompliance with any Environmental Laws by any Lender Party or
any other Person or any liabilities or duties of any Lender Party or any other
Person with respect to Hazardous Materials found in or released into the
environment).
The foregoing indemnification shall apply whether or not such liabilities and
costs are in any way or to any extent owed, in whole or in part, under any claim
or theory of strict liability or caused, in whole or in part, by any negligent
act or omission of any kind by any Lender Party,
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provided only that no Lender Party shall be entitled under this section to
receive indemnification for that portion, if any, of any liabilities and costs
which is proximately caused by its own individual gross negligence or willful
misconduct, as determined in a final judgment. If any Person (including Borrower
or any of its Affiliates) ever alleges such gross negligence or willful
misconduct by any Lender Party, the indemnification provided for in this section
shall nonetheless be paid upon demand, subject to later adjustment or
reimbursement, until such time as a court of competent jurisdiction enters a
final judgment as to the extent and effect of the alleged gross negligence or
willful misconduct. As used in this section the term "Lender Party" shall refer
not only to each Person designated as such in Section 1.1 but also to each
director, officer, agent, attorney, employee, representative and Affiliate of
such Persons.
Section 10.5. Joint and Several Liability; Parties in Interest;
Assignments; Replacement Notes.
(a) All Obligations which are incurred by two or more Restricted
Persons shall be their joint and several obligations and liabilities. All
grants, covenants and agreements contained in the Loan Documents shall bind and
inure to the benefit of the parties thereto and their respective successors and
permitted assigns; provided, however, that no Restricted Person may assign or
transfer any of its rights or delegate any of its duties or obligations under
any Loan Document without the prior consent of all Lenders. Neither Borrower nor
any Affiliates of Borrower shall directly or indirectly purchase or otherwise
retire any Obligations owed to any Lender nor will any Lender accept any offer
to do so, unless each Lender shall have received substantially the same offer
with respect to the same Percentage Share of the Obligations owed to it. If
Borrower or any Affiliate of Borrower at any time purchases some but less than
all of the Obligations owed to all Lender Parties, such purchaser shall not be
entitled to any rights of any Lender under the Loan Documents unless and until
Borrower or its Affiliates have purchased all of the Obligations.
(b) No Lender shall sell any participation interest in its commitment
hereunder or any of its rights under its Loans or under the Loan Documents to
any Person unless the agreement between such Lender and such participant at all
times provides: (i) that such participation exists only as a result of the
agreement between such participant and such Lender and that such transfer does
not give such participant any right to vote as a Lender or any other direct
claims or rights against any Person other than such Lender, (ii) that such
participant is not entitled to payment from any Restricted Person under Sections
3.2 through 3.6 of amounts in excess of those payable to such Lender under such
sections (determined without regard to the sale of such participation), and
(iii) unless such participant is an Affiliate of such Lender, that such
participant shall not be entitled to require such Lender to take any action
under any Loan Document or to obtain the consent of such participant prior to
taking any action under any Loan Document, except for actions which would
require the consent of all Lenders under subsection (a) of Section 10.1. No
Lender selling such a participation shall, as between the other parties hereto
and such Lender, be relieved of any of its obligations hereunder as a result of
the sale of such participation. Each Lender which sells any such participation
to any Person (other than an Affiliate of such Lender) shall give prompt notice
thereof to Administrative Agent and Borrower; provided, however, that no
liability shall arise if any Lender fails to give such notice to Borrower.
(c) Except for sales of participations under the immediately preceding
subsection, no Lender shall make any assignment or transfer of any kind of its
commitments or any of its rights
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under its Loans or under the Loan Documents, except for assignments to an
Eligible Transferee, or, subject to the provisions of subsection (g) below, to
an Affiliate and then only if such assignment is made in accordance with the
following requirements:
(i) Each such assignment shall apply to all Obligations
owing to the assignor Lender hereunder and to the unused portion of the
assignor Lender's commitments, so that after such assignment is made
the assignor Lender shall have a fixed (and not a varying) Percentage
Share in its Loans and Note and be committed to make that Percentage
Share of all future Loans, the assignee shall have a fixed Percentage
Share in such Loans and Note and be committed to make that Percentage
Share of all future Loans, and the Percentage Share of the Maximum
Facility Amount of each of the assignor and assignee shall equal or
exceed $5,000,000.
(ii) The parties to each such assignment shall execute and
deliver to Administrative Agent, for its acceptance and recording in
the "Register" (as defined below in this section), an Assignment and
Acceptance in the form of Exhibit J, appropriately completed, together
with the Note subject to such assignment and a processing fee payable
by such assignor Lender (and not at Borrower's expense) to
Administrative Agent of $3,500. Upon such execution, delivery, and
payment and upon the satisfaction of the conditions set out in such
Assignment and Acceptance, then (i) Borrower shall issue new Notes to
such assignor and assignee upon return of the old Notes to Borrower,
and (ii) as of the "Settlement Date" specified in such Assignment and
Acceptance the assignee thereunder shall be a party hereto and a Lender
hereunder and Administrative Agent shall thereupon deliver to Borrower
and each Lender a revised Schedule 1 hereto showing the revised
Percentage Shares of such assignor Lender and such assignee Lender and
the Percentage Shares of all other Lenders.
(iii) Each assignee Lender which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, shall (to the extent it has not already
done so) provide Administrative Agent and Borrower with the "Prescribed
Forms" referred to in Section 3.7(d).
(d) Any Lender may at any time pledge all or any portion of its Loan
and Note (and related rights under the Loan Documents including any portion of
its Note) to any of the twelve (12) Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
enforcement thereof shall release any such Lender from its obligations under any
of the Loan Documents; provided that all related costs, fees and expenses in
connection with any such pledge shall be for the sole account of such Lender.
(e) By executing and delivering an Assignment and Acceptance, each
assignee Lender thereunder will be confirming to and agreeing with Borrower,
Administrative Agent and each other Lender Party that such assignee understands
and agrees to the terms hereof, including Article IX hereof.
(f) Administrative Agent shall maintain a copy of each Assignment and
Acceptance and a register for the recordation of the names and addresses of
Lenders and the Percentage Shares of,
92
and principal amount of the Loans owing to, each Lender from time to time (in
this section called the "Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and Borrower and each Lender Party
may treat each Person whose name is recorded in the Register as a Lender Party
hereunder for all purposes. The Register shall be available for inspection by
Borrower or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(g) Any Lender may assign or transfer its commitment or its rights
under its Loans or under the Loan Documents to (i) any Affiliate that is
wholly-owned direct or indirect subsidiary of such Lender or of any Person that
wholly owns, directly or indirectly, such Lender, or (ii) if such Lender is a
fund that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by (A) the same investment advisor as any Lender or (B)
any Affiliate of such investment advisor that is a wholly-owned direct or
indirect subsidiary of any Person that wholly owns, directly or indirectly, such
investment advisor, subject to the following additional conditions:
(x) any right of such Lender assignor and such assignee to vote as a
Lender, or any other direct claims or rights against any other Persons,
shall be uniformly exercised or pursued in the manner that such Lender
assignor would have so exercised such vote, claim or right if it had
not made such assignment or transfer;
(y) such assignee shall not be entitled to payment from any Restricted
Person under Sections 3.2 through 3.7 of amounts in excess of those
payable to such Lender assignor under such sections (determined without
regard to such assignment or transfer); and
(z) if such Lender assignor assigns or transfers to such assignee any
of such Lender's commitment, such assignee may become primarily liable
for such commitment, but such assignment or transfer shall not relieve
or release such Lender from such commitment.
(h) Upon receipt of an affidavit reasonably satisfactory to Borrower of
an officer of any Lender as to the loss, theft, destruction or mutilation of its
Note or any Security Document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of such Note
or such Security Document, Borrower will execute and deliver, in lieu thereof, a
replacement Note in the same principal amount thereof and otherwise of like
tenor (or each Restricted Person a party to any such Security Document will
execute and deliver a replacement Security Document of like tenor).
Section 10.6. Confidentiality. Each Lender Party agrees (on behalf of
itself and each of its Affiliates, and each of its and their directors,
officers, agents, attorneys, employees, and representatives) that it (and each
of them) will take all reasonable steps to keep confidential any non-public
information supplied to it by or at the direction of any Restricted Person so
identified when delivered, provided, however, that this restriction shall not
apply to (a) information which has at the time in question entered the public
domain, (b) information which is required to be disclosed by Law (whether valid
or invalid) of any Tribunal, (c) any disclosure to any Lender Party's
Affiliates, auditors, attorneys, or agents, (d) any disclosure to any other
Lender Party or to any purchaser or prospective purchaser of participations or
other interests in any Loan or Loan
93
Document (provided each such Person first agrees to hold such information in
confidence on the terms provided in this section), or (e) any disclosure in the
course of enforcing its rights and remedies during the existence of an Event of
Default.
Section 10.7. Governing Law; Submission to Process. EXCEPT TO THE
EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A LOAN
DOCUMENT, THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS
OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. BORROWER HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST BORROWER
WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS LENDER PARTIES MAY ELECT, AND,
BY EXECUTION AND DELIVERY HEREOF, BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND
IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. BORROWER AGREES THAT SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO
THE LOAN DOCUMENTS AND WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR
PROCEEDING BROUGHT BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS. IN
FURTHERANCE OF THE FOREGOING, BORROWER HEREBY IRREVOCABLY DESIGNATES AND
APPOINTS CORPORATION SERVICE COMPANY, 80 STATE STREET, ALBANY, NEW YORK 12207,
AS AGENT OF BORROWER TO RECEIVE SERVICE OF ALL PROCESS BROUGHT AGAINST BORROWER
WITH RESPECT TO ANY SUCH PROCEEDING IN ANY SUCH COURT IN NEW YORK, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT. COPIES OF ANY SUCH PROCESS SO SERVED SHALL ALSO, IF PERMITTED BY
LAW, BE SENT BY REGISTERED MAIL TO BORROWER AT ITS ADDRESS SET FORTH BELOW, BUT
THE FAILURE OF BORROWER TO RECEIVE SUCH COPIES SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS AS AFORESAID. BORROWER SHALL FURNISH TO LENDER PARTIES A
CONSENT OF CORPORATION SERVICE COMPANY AGREEING TO ACT HEREUNDER PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
LENDER PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF LENDER PARTIES TO BRING PROCEEDINGS AGAINST BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. IF FOR ANY REASON CORPORATION SERVICE COMPANY
SHALL RESIGN OR OTHERWISE CEASE TO ACT AS BORROWER'S AGENT, BORROWER HEREBY
IRREVOCABLY AGREES TO
94
(A) IMMEDIATELY DESIGNATE AND APPOINT A NEW AGENT ACCEPTABLE TO ADMINISTRATIVE
AGENT TO SERVE IN SUCH CAPACITY AND, IN SUCH EVENT, SUCH NEW AGENT SHALL BE
DEEMED TO BE SUBSTITUTED FOR CORPORATION SERVICE COMPANY FOR ALL PURPOSES HEREOF
AND (B) PROMPTLY DELIVER TO AGENT THE WRITTEN CONSENT (IN FORM AND SUBSTANCE
SATISFACTORY TO ADMINISTRATIVE AGENT) OF SUCH NEW AGENT AGREEING TO SERVE IN
SUCH CAPACITY.
Section 10.8. Waiver of Judgment Interest Act (Alberta). To the extent
permitted by Law, the provisions of the Judgment Interest Act (Alberta) shall
not apply to LC Obligations with respect to Canadian Letters of Credit and the
other Loan Documents and are hereby expressly waived by Borrower.
Section 10.9. Deemed Reinvestment Not Applicable. For the purposes of
the Interest Act (Canada), the principle of deemed reinvestment of interest
shall not apply to any interest calculation under the Loan Documents, and the
rates of interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.
Section 10.10. Limitation on Interest. Lender Parties, Restricted
Persons and any other parties to the Loan Documents intend to contract in strict
compliance with applicable usury Law from time to time in effect. In furtherance
thereof such Persons stipulate and agree that none of the terms and provisions
contained in the Loan Documents shall ever be construed to create a contract to
pay, for the use, forbearance or detention of money, interest in excess of the
maximum amount of interest permitted to be contracted for, charged, or received
by applicable Law from time to time in effect. Neither any Restricted Person nor
any present or future guarantors, endorsers, or other Persons hereafter becoming
liable for payment of any Obligation shall ever be liable for unearned interest
thereon or shall ever be required to pay interest thereon in excess of the
maximum amount that may be lawfully contracted for, charged, or received under
applicable Law from time to time in effect, and the provisions of this section
shall control over all other provisions of the Loan Documents which may be in
conflict or apparent conflict herewith. Lender Parties expressly disavow any
intention to contract for, charge, or receive excessive unearned interest or
finance charges in the event the maturity of any Obligation is accelerated. If
(a) the maturity of any Obligation is accelerated for any reason, (b) any
Obligation is prepaid and as a result any amounts held to constitute interest
are determined to be in excess of the legal maximum, or (c) any Lender or any
other holder of any or all of the Obligations shall otherwise collect moneys
which are determined to constitute interest which would otherwise increase the
interest on any or all of the Obligations to an amount in excess of that
permitted to be contracted for, charged or received by applicable Law then in
effect, then all sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then outstanding
principal of the related Obligations or, at such Lender's or holder's option,
promptly returned to Borrower or other payor thereof upon such determination. In
determining whether or not the interest paid or payable, under any specific
circumstance, exceeds the maximum amount permitted under applicable Law, Lender
Parties and Restricted Persons (and any other payors thereof) shall to the
greatest extent permitted under applicable Law, (i) characterize any
non-principal payment as an expense, fee or premium rather than as interest,
95
(ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the instruments evidencing the Obligations in accordance
with the amounts outstanding from time to time thereunder and the maximum legal
rate of interest from time to time in effect under applicable Law in order to
lawfully charge the maximum amount of interest permitted under applicable Law.
In the event applicable Law provides for an interest ceiling under Chapter 303
of the Texas Finance Code (the "Texas Finance Code") as amended, to the extent
that the Texas Finance Code is mandatorily applicable to any Lender, for that
day, the ceiling shall be the "weekly ceiling" as defined in the Texas Finance
Code, provided that if any applicable Law permits greater interest, the Law
permitting the greatest interest shall apply. In no event shall Chapter 346 of
the Texas Finance Code apply to this Agreement or any other Loan Document, or
any transactions or loan arrangement provided or contemplated hereby or thereby.
Section 10.11. Termination; Limited Survival. In its sole and absolute
discretion Borrower may at any time that no Obligations are owing or outstanding
elect in a written notice delivered to Administrative Agent to terminate this
Agreement. Upon receipt by Administrative Agent of such a notice, if no
Obligations are then owing or outstanding this Agreement and all other Loan
Documents shall thereupon be terminated and the parties thereto released from
all prospective obligations thereunder. Notwithstanding the foregoing or
anything herein to the contrary, any waivers or admissions made by any
Restricted Person in any Loan Document, any Obligations under Sections 3.2
through 3.6, and any obligations which any Person may have to indemnify or
compensate any Lender Party shall survive any termination of this Agreement or
any other Loan Document. At the request and expense of Borrower, Administrative
Agent shall prepare and execute all necessary instruments to reflect and effect
such termination of the Loan Documents. Administrative Agent is hereby
authorized to execute all such instruments on behalf of all Lenders, without the
joinder of or further action by any Lender.
Section 10.12. Severability. If any term or provision of any Loan
Document shall be determined to be illegal or unenforceable all other terms and
provisions of the Loan Documents shall nevertheless remain effective and shall
be enforced to the fullest extent permitted by applicable Law.
Section 10.13. Counterparts. This Agreement may be separately executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Agreement.
Section 10.14. Waiver of Jury Trial, Punitive Damages, etc. Restricted
Persons and Lender Parties mutually hereby knowingly, voluntarily, and
intentionally waive the right to a trial by jury in respect of any claim based
hereon, arising out of, under or in connection with, this Agreement or any other
Loan Documents contemplated to be executed in connection herewith or any course
of conduct, course of dealings, statements (whether verbal or written) or
actions of any party. This waiver constitutes a material inducement for Lenders
to enter into this Agreement and the other Loan Documents and make
96
the Loans. Borrower and each Lender Party hereby further (a) irrevocably waives,
to the maximum extent not prohibited by Law, any right it may have to claim or
recover in any such litigation any "Special Damages," as defined below, (b)
certifies that no party hereto nor any representative or agent or counsel for
any party hereto has represented, expressly or otherwise, or implied that such
party would not, in the event of litigation, seek to enforce the foregoing
waivers, and (c) acknowledges that it has been induced to enter into this
Agreement, the other Loan Documents and the transactions contemplated hereby and
thereby by, among other things, the mutual waivers and certifications contained
in this section. As used in this section, "Special Damages" includes all
special, consequential, exemplary, or punitive damages (regardless of how
named), but does not include any payments or funds which any party hereto has
expressly promised to pay or deliver to any other party hereto.
Section 10.15. Amendment and Restatement. Upon satisfaction with each
of the conditions set forth in Section 4.3 (except any condition the performance
of which has been waived as a condition to the initial Loan or initial issuance
of a Letter of Credit pursuant to this Agreement), this Agreement shall be
deemed to amend and restate in its entirety the Existing Agreement, at which
time (the "Effective Time") each Lender and each Restricted Person hereby agrees
that (i) the Percentage Share of each Lender shall be as set forth in the
definition to this Agreement, (ii) the loans outstanding under the Existing
Agreement and all accrued and unpaid interest thereon, all letters of credit
issued and outstanding under the Existing Agreement and reimbursement
obligations with respect thereto, and all accrued and unpaid fees and expenses
under the Existing Agreement (the "Outstanding Obligations") shall be deemed to
be outstanding under and governed by this Agreement, and (iii) any "Lender"
under the Existing Agreement that is not a signatory hereto as a Lender under
this Agreement, shall continue to be a Lender, subject to the rights, remedies
and obligations of a "Lender" in this Agreement, and in no event shall be deemed
to have waived or released any of its rights or remedies, nor released from its
obligations under the Existing Agreement, all of which such rights, remedies and
obligations shall continue pursuant to, and as may be amended or restated
pursuant to, the terms hereof; provided, until such time as all "Lenders" under
the Existing Agreement execute and deliver this Agreement, any term or provision
of the Existing Agreement stated herein to be amended hereby that would, under
the terms of the Existing Agreement, require each "Lender" under the Existing
Agreement to consent to such amendment shall not be so amended, and such term or
provision as set forth in the Existing Agreement shall be deemed to be
incorporated herein verbatim and with respect to such term or provisions, shall
be the operative provision of this Agreement, until such time as all "Lenders"
under the Existing Agreement shall have executed and delivered this Agreement,
at which time such amended terms or provisions as set forth herein shall
thereafter govern; provided, further, however, for the avoidance of doubt, all
other terms and provisions of this Agreement shall be effective upon
satisfaction of the conditions set forth in Section 4.3.
97
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98
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
BORROWER: PLAINS MARKETING, L.P.
By: PLAINS MARKETING GP INC.
its general partner
By: /s/ Al Swanson
--------------------------------------------
Al Swanson, Treasurer
GUARANTORS: ALL AMERICAN PIPELINE, L.P.
By: PLAINS MARKETING GP INC.
its general partner
By: /s/ Al Swanson
--------------------------------------------
Al Swanson, Treasurer
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS AAP, L.P.,
its general partner
By: PLAINS ALL AMERICAN GP LLC,
Its general partner
By: /s/ Al Swanson
--------------------------------------------
Al Swanson, Treasurer
Address for Borrower and Guarantors:
333 Clay Street, Suite 1600
Houston, Texas 77002
Attention: Al Swanson
Telephone: (713) 646-4455
Fax: (713) 646-4564
99
FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and
a Lender
By: /s/ Terrence Ronan
-------------------------------------------
Terrence Ronan, Managing Director
Address:
100 Federal Street
Boston, Massachusetts 02110
Attention: Terrence Ronan
Mail Code: MADE 10008D
Telephone: (617) 434-5472
Fax: (617) 434-3652
FLEET SECURITIES, INC.,
Lead Arranger and Book Manager
By: /s/ Richard Makin
-------------------------------------------
Richard Makin, Managing Director
100
WACHOVIA BANK NATIONAL
ASSOCIATION, Syndication Agent and a
Lender
By: /s/ Robert R. Wetteroff
-------------------------------------------
Robert R. Wetteroff, Sr. Vice Pres.
Address:
1001 Fannin, Suite 2255
Houston, Texas 77002
Attention: David Humphreys
Telephone: (713) 650-9843
Fax: (713) 650-6354
101
BANK OF AMERICA, N.A.,
Documentation Agent and a Lender
By: /s/
----------------------------------------
Name:
Title:
Address:
Energy Finance Group
333 Clay Street, Suite 4550
Houston, Texas 77002
Attention: Ron McKaig
Telephone: (713) 651-4881
Fax: (713) 651-4801
102
BANK ONE, NA (MAIN OFFICE
CHICAGO), Senior Managing Agent and a
Lender
By: /s/
----------------------------------------
Name:
Title:
Address:
910 Travis
Houston, Texas 77002
Attention: Charles Kingswell-Smith
Telephone: (713) 751-7803
Telecopy: (713) 751-3544
103
BNP PARIBAS,
Senior Managing Agent and a Lender
By: /s/
----------------------------------------
Name:
Title:
By: /s/
----------------------------------------
Name:
Title:
Address:
787 7th Avenue
New York, New York 10019
Attention: Edward Chin/Marcie Weiss
Telephone: (212) 841-2020 (EC); -2029
Telecopy: (212) 841-2536
104
FORTIS CAPITAL CORP.,
Senior Managing Agent and a Lender
By: /s/
----------------------------------------
Name:
Title:
By: /s/
----------------------------------------
Name:
Title:
Address:
100 Crescent Court, Suite 1777
Dallas, Texas 75201
Attention: Darrell W. Holley
Telephone:(214) 754-0009
Telecopy: (214) 754-5951
105
U.S. BANK NATIONAL ASSOCIATION,
a Lender
By: /s/
-----------------------------------------
Name:
Title:
Address:
918 17th Street
Denver, Colorado 80202
Attention: Monte E. Deckerd
Telephone: (303) 585-4212
Telecopy: (303) 585-4362
106
BANK OF SCOTLAND,
a Lender
By: /s/
-----------------------------------------
Name:
Title:
Address:
565 Fifth Avenue
New York, New York 10017
Attention: Joseph Fratus, First Vice Pres.
Telephone: (212) 450-0837 / 0800
Telecopy: (212) 557-9460
With Copy to:
1021 Main Street, Suite 1370
Houston, Texas 77002
Attention: Richard C. Butler
Telephone: (713) 650-0609
Telecopy: (713) 651-9714
107
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, a Lender
By: /s/
-----------------------------------------
Name:
Title:
Address:
1000 Louisiana, 3rd Floor
Houston, Texas 77002
Attention: John Lane
Telephone: (713) 319-1370
Telecopy: (713) 739-1087
108
SIEMENS FINANCIAL SERVICES, INC.,
a Lender
By: /s/
-----------------------------------------
Name:
Title:
Address:
200 Somerset Corporate Boulevard
Bridgewater, New Jersey 08807-2843
Attention: Victor Alarcon
Telephone: (908) 575-4074
Telecopy: (908) 575-4060
109
THE BANK OF NOVA SCOTIA,
a Lender
By: /s/
-----------------------------------------
Name:
Title:
Address:
600 Peachtree Street, N.E., Ste 2700
Atlanta, Georgia 30308
Attention: Donna Gardner
Telephone: 404-877-1559
Telecopy: 404-888-8998
With Copy to:
Houston Representative Office
1100 Louisiana, Ste 3000
Houston, Texas 77002
Attention: Bryan Bulawa
Telephone: 713-759-3427
Telecopy: 713-752-2425
110
CREDIT AGRICOLE INDOSUEZ,
a Lender
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
Address:
600 Travis Street, Suite 2340
Houston, Texas 77002
Attention: Mike Willis
Telephone: 713-223-7041
Telecopy: 713-223-7029
111
CITICORP USA, INC.,
a Lender
By: /s/
---------------------------------------
Name:
Title:
Address:
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attention: Douglas A. Whiddon/Brian Smith
Telephone: 713-654-2908
Telecopy: 713-654-2849
112
TORONTO DOMINION (TEXAS), INC.,
a Lender
By: /s/
---------------------------------------
Name:
Title:
Address:
909 Fannin, Suite 1700
Houston, Texas 77010
Attention: Don Warmington
Telephone: (713) 653-8234
Telecopy: (713) 951-9921
113
SOUTHWEST BANK OF TEXAS, N.A.,
a Lender
By: /s/
----------------------------------------
Name:
Title:
Address:
5 Post Oak Park
4400 Post Oak Parkway
Houston, Texas 77027
Attention: Ken Batson/A. Stephen Kennedy
Telephone: (713) 232-1247/(713) 235-8870
Telecopy: (713) 232-1357/(713) 232-1357
114
UNION BANK OF CALIFORNIA, N.A.,
a Lender
By: /s/
----------------------------------------
Name:
Title:
Address:
500 North Akard, Suite 4200
Dallas, Texas 75201
Attn: Dustin Gaspari
Telephone: (214) 922-4200
Telecopy: (214) 922-4209
115
COMERICA BANK-TEXAS,
a Lender
By: /s/
----------------------------------------
Name: Daniel G. Steele
Title: Sr. Vice President
Address:
910 Louisiana, Suite 410
Houston, Texas 77002
Attention: Daniel G. Steele
Telephone: (713) 220-5640
Telecopy: (713) 220-5650
116