EXHIBIT 10.14
[PIPELINE]
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of the
18th day of March, 1999, by and among ALL AMERICAN PIPELINE, L.P. ("All
American" or "Borrower"), PLAINS MARKETING, L.P. ("Marketing"), PLAINS ALL
AMERICAN PIPELINE, L.P. ("Plains MLP"), ING (U.S.) CAPITAL LLC, successor in
interest to ING (U.S.) CAPITAL CORPORATION, as Administrative Agent (in such
capacity, "Administrative Agent"), BANCBOSTON ROBERTSON STEPHENS INC., as
documentation agent (in such capacity, "Documentation Agent") and the Lenders a
party hereto.
W I T N E S S E T H:
WHEREAS, Borrower, Marketing, Plains MLP, Administrative Agent, Syndication
Agent, Documentation Agent and Lenders entered into that certain Credit
Agreement dated as of November 17, 1998 (as amended, restated, or supplemented
to the date hereof, the "Original Agreement") for the purposes and consideration
therein expressed, pursuant to which Lenders became obligated to make and made
loans to Borrower as therein provided; and
WHEREAS, Borrower, Marketing, Plains MLP, Administrative Agent, Syndication
Agent, Documentation Agent and the Lenders a party hereto desire to amend the
Original Agreement for the purposes described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(S) 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this First Amendment to Credit Agreement.
"Amendment Documents" means this Amendment.
"Credit Agreement" means the Original Agreement as amended hereby.
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ARTICLE II. -- Amendments
(S) 2.1. Definitions. The definition of "Permitted Investments" set forth
in Section 1.1 of the Original Agreement is hereby amended by replacing "and
(d)" with ", (d)" and adding a new clause (e) at the end thereof, to read as
follows:
and (e) Investments directly or indirectly by Restricted Persons in
Unrestricted Subsidiaries in an aggregate amount not to exceed, at any one
time outstanding, the sum of (i) $25,000,000, plus (ii) the lesser of
$40,000,000 or the amount, if any, of Investments of cash in Restricted
Persons by General Partner or by PAAI LLC (less any amount of such
Investment returned) at the time in question, provided such Investment of
cash was made during the period from March 1, 1999 through December 31,
1999.
The definition of "Restricted Person" set forth in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Restricted Person" means any of Plains MLP and each Subsidiary of
Plains MLP, including but not limited to Borrower, Marketing and each
Subsidiary of Borrower and/or Marketing, but excluding Unrestricted
Subsidiaries.
The definition of "Subsidiary" set forth in Section 1.1 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership, limited liability company, joint venture, or
other business or corporate entity, enterprise or organization which is
directly or indirectly (through one or more intermediaries) controlled or
owned more than fifty percent by such Person; provided, however, that no
Unrestricted Subsidiary shall be deemed a "Subsidiary" of Borrower or
Plains MLP for purposes of any Loan Document except as provided in Section
7.16.
The following definition of "Unrestricted Subsidiary" is hereby added to
Section 1.1 of the Original Agreement immediately following the definition of
"Type":
"Unrestricted Subsidiary" shall have the meaning given it in Section
7.16.
(S) 2.2. Use of Proceeds. Clause (iii) of the first sentence of Section
2.4 of the Original Agreement is hereby amended in its entirety to read as
follows:
(iii) all Revolver Loans not designated as Working Capital Loans
pursuant to Section 2.2(c) to finance capital expenditures of any
Restricted Person, to pay reimbursement obligations of Letters of Credit,
to provide working capital for operations and for other general business
purposes, including acquisitions, but not to pay distributions to partners
of Restricted Persons; provided, Borrower may use up to $25,000,000 of the
proceeds of Revolver Loans to make Investments in to Marketing, provided
Marketing contemporaneously therewith uses the full amount of such
Investments to make "Permitted Investments" as described in clause (e)(i)
of the definition of such term.
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(S) 2.3. Agreements to Deliver Security Documents. Section 6.14 of the
Original Agreement is hereby amended by adding to such section the following
sentence:
"In no event shall any Restricted Person 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."
(S) 2.4. Unrestricted Subsidiaries. Article VII of the Original Agreement
is hereby amended by adding a new Section 7.16 at the end thereof, to read as
follows:
Section 7.16 Unrestricted Subsidiaries. Marketing may form one direct
Subsidiary (such Subsidiary, and each of its Subsidiaries, each an
"Unrestricted Subsidiary"), which Unrestricted Subsidiaries shall be
subject to the following:
(a) Subject to subsection (d) below, no Unrestricted Subsidiary shall be
deemed to be a "Restricted Person" or a "Subsidiary" of Marketing or
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 7.16.
(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 (e) 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 (i) any management contract or agreement with any
Unrestricted Subsidiary, except upon the prior written consent of
Majority Lenders, not to be unreasonably withheld, or (ii) any other
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) No Unrestricted Subsidiary shall enter into any contract or agreement
to acquire, or acquire any property, except upon the prior approval of
Majority Lenders with respect to (i) existing or potential
environmental or litigation liabilities and (ii) satisfaction as to
any governmental approval as required which in any event or in the
aggregate could cause a Material Adverse Change.
(d) If any Unrestricted Subsidiary shall fail to consummate one or more
acquisitions of property as of December 31, 1999 with a fair market
value equal to or greater than the amount of Investments made in such
Unrestricted Subsidiaries by General Partner, PAAI LLC, or Restricted
Persons pursuant to clause (e) of the definition of Permitted
Investments as of December
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31, 1999, then on and after December 31, 1999 each Unrestricted
Subsidiary shall be deemed to be a "Subsidiary" of Marketing for
purposes of this Agreement and shall be subject to the terms and
conditions hereof.
(e) Borrower shall at all times maintain the separate existence of each
Unrestricted Subsidiary.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of
the date first above written when and only when Administrative Agent shall have
received, at Administrative Agent's office, a counterpart of this Amendment
executed and delivered by Borrower, Marketing, Plains MLP, Administrative Agent,
Syndication Agent, Documentation Agent and Majority Lenders.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrower. In
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrower represent and warrant to Administrative Agent and each
Lender that:
(a) The representations and warranties contained in Article V of the
Original Agreement, are true and correct at and as of the time of the
effectiveness hereof, subject to the amendment of certain of the Schedules
to the Credit Agreement as attached hereto and except to the extent that
such representation and warranty was made as of a specific date.
(b) Each Restricted Person is duly authorized to execute and deliver
this Amendment and the other Amendment Documents to the extent a party
thereto, and Borrower is and will continue to be duly authorized to borrow
and perform its obligations under the Credit Agreement. Each Restricted
Person has duly taken all corporate action necessary to authorize the
execution and delivery of this Amendment and the other Amendment Documents,
to the extent a party thereto, and to authorize the performance of their
respective obligations thereunder.
(c) The execution and delivery by each Restricted Person of this
Amendment and the other Amendment Documents, to the extent a party thereto,
the performance by each Restricted Person of their respective obligations
hereunder and thereunder, and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with any
provision of law, statute, rule or regulation or of the certificate or
articles of incorporation and bylaws of any Restricted Person, or of any
material agreement, judgment, license, order or permit applicable to or
binding upon any Restricted Person, or result in the creation of any lien,
charge or encumbrance upon any assets or properties of any Restricted
Person, except in favor of Administrative Agent for the benefit of Lenders.
Except for those which have been duly obtained, no consent, approval,
authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by any
Restricted Person of this Amendment or any other
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Amendment Document, to the extent a party thereto, or to consummate the
transactions contemplated hereby and thereby.
(d) When this Amendment and the other Amendment Documents have been
duly executed and delivered, each of the Loan Documents, as amended by this
Amendment and the other Amendment Documents, will be a legal and binding
instrument and agreement of each Restricted Person, to the extent a party
thereto, enforceable in accordance with its terms, (subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency and similar
laws applicable to creditors' rights generally and to general principles of
equity).
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents,
as they may be amended or affected by this Amendment and/or the other Amendment
Documents, are hereby ratified and confirmed in all respects. Any reference to
the Credit Agreement in any Loan Document shall be deemed to refer to this
Amendment also. The execution, delivery and effectiveness of this Amendment and
the other Amendment Documents shall not, except as expressly provided herein or
therein, operate as a waiver of any right, power or remedy of Administrative
Agent or any Lender under the Credit Agreement or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement or any other Loan
Document.
(S) 5.2. Ratification of Security Documents. Restricted Persons,
Administrative Agent and Lenders each acknowledge and agree that any and all
indebtedness, liabilities or obligations arising under or in connection with the
Notes are Obligations and is secured indebtedness under, and is secured by, each
and every Security Document to which any Restricted Person is a party. Each
Restricted Person hereby re-pledges, re-grants and re-assigns a security
interest in and lien on every asset of the such Restricted Person described as
Collateral in any Security Document.
(S) 5.3. Survival of Agreements. All representations, warranties,
covenants and agreements of the Restricted Persons herein and in the other
Amendment Documents shall survive the execution and delivery of this Amendment
and the other Amendment Documents and the performance hereof and thereof,
including without limitation the making or granting of each Loan, and shall
further survive until all of the Obligations are paid in full. All statements
and agreements contained in any certificate or instrument delivered by any
Restricted Person hereunder, under the other Amendment Documents or under the
Credit Agreement to Administrative Agent or any Lender shall be deemed to
constitute representations and warranties by, or agreements and covenants of,
such Restricted Person under this Amendment and under the Credit Agreement.
(S) 5.4. Loan Documents. This Amendment and each of the other Amendment
Documents is a Loan Document, and all provisions in the Credit Agreement
pertaining to Loan Documents apply hereto and thereto.
(S) 5.5. GOVERNING LAW. THIS AMENDMENT AND THE OTHER AMENDMENT
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY AND
PERFORMANCE.
(S) 5.6. Counterparts. This Amendment and each of the other Amendment
Documents may be separately executed in counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to constitute one and the same Amendment or Amendment Document, as the
case may be.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Michael R. Patterson
----------------------------
Name: Michael R. Patterson
Title: Senior Vice President and
General Counsel
PLAINS MARKETING, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Michael R. Patterson
----------------------------
Name: Michael R. Patterson
Title: Senior Vice President and
General Counsel
PLAINS ALL AMERICAN PIPELINE, L.P.
By: /s/ Michael R. Patterson
----------------------------
Name: Michael R. Patterson
Title: Senior Vice President and
General Counsel
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ING (U.S.) CAPITAL LLC,
Administrative Agent and a Lender
By: /s/ Peter Y. Clinton
-----------------------
Name: Peter Y. Clinton
Title: Senior Vice President
ING BARING FURMAN SELZ LLC,
Syndication Agent
By:
-----------------------
Name:
Title:
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BANKBOSTON, N.A., LC Issuer and Lender
By: /s/ Terrence Ronan
-----------------------
Terence Ronan, Director
BANCBOSTON ROBERTSON STEPHENS INC., Documentation
Agent
By: /c/ Richard J. Makin
----------------------------------
Richard J. Makin, Managing Director
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FIRST UNION NATIONAL BANK, Lender
By: /s/ Robert R. Wetteroff
--------------------------
Name: Robert R. Wetteroff
Title: Senior Vice President
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DEN NORSKE BANK ASA, Lender
By: /s/ J. Morten Kreutz
------------------------
Name: J. Morten Kreutz
Title: Vice President
By: /s/ William V. Moyer
------------------------
Name: William V. Moyer
Title: Senior Vice President
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MEESPIERSON CAPITAL CORP., Lender
By: /s/ Deirdre M. Sanborn
--------------------------
Name: Deirdre M. Sanborn
Title: Assistant Vice President
By: /s/ D. Thomas Abbott
------------------------
Name: D. Thomas Abbott
Title: Chairman
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BANK OF SCOTLAND, Lender
By: /s/ Annie Chin Tat
---------------------
Name: Annie Chin Tat
Title: Senior Vice President
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CREDIT AGRICOLE INDOSUEZ, Lender
By: /s/ David Bouhl
------------------
Name: David Bouhl
Title: First Vice President, Managing Director
By: /s/ Katherine L. Abbott
---------------------------
Name: Katherine L. Abbott
Title: First Vice President
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UNION BANK OF CALIFORNIA, N.A., Lender
By: /s/ Dustin Gaspari
---------------------
Name: Dustin Gaspari
Title: Assistant Vice President
By: /s/ Carl Stutzman
--------------------
Name: Carl Stutzman
Title: Senior Vice President and Manager
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HIBERNIA NATIONAL BANK, Lender
By: /s/ Tammy Angelety
-------------------------
Name: Tammy Angelety
Title: Vice President
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