EXHIBIT 10.3
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
THIS CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT, dated as of
November 23, 1998, is entered into by and among PLAINS RESOURCES INC., a
Delaware corporation ("Plains Resources"), PLAINS ALL AMERICAN INC., a Delaware
corporation ("PAAI"), PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited
partnership (the "Partnership"), PLAINS MARKETING, L.P., a Delaware limited
partnership ("Plains Marketing"), ALL AMERICAN PIPELINE, L.P., a Texas limited
partnership ("All American L.P."), PAAI LLC, a Delaware limited liability
company ("PAAI LLC"), and GATHERING LLC, a Delaware limited liability company
("Gathering LLC").
RECITALS
WHEREAS, PAAI and Plains Resources have formed the Partnership
pursuant to the Delaware Revised Uniform Limited Partnership Act (the "Delaware
Act") for the purpose of serving as the sole limited partner of Plains
Marketing;
WHEREAS, PAAI contributed $990.00 to the capital of the Partnership
and received a 1% general partner interest and a 49% limited partner interest
therein; and Plains Resources contributed $990.00 to the capital of the
Partnership and received a 50% limited partner interest therein;
WHEREAS, Plains Resources sold its 50% limited partner interest in the
Partnership to Michael Patterson (the "Organizational Limited Partner");
WHEREAS, PAAI and the Partnership have heretofore formed Plains
Marketing pursuant to the Delaware Act for the purpose of acquiring, owning and
operating the midstream
crude oil business and assets of Plains Resources and its subsidiaries,
including, without limitation, the business of crude oil marketing, gathering,
transportation, storage, terminaling and pipeline operation and the assets
(other than the Plains Excluded Assets) of Plains Transportation, Plains
Terminal, PLX Crude and PLX Ingleside (as defined herein) (the "Business");
WHEREAS, PAAI contributed $500 to the capital of Plains Marketing and
received a 1% general partner interest and a 49% limited partner interest
therein; and the Partnership contributed $500 to the capital of Plains Marketing
and received a 50% limited partner interest therein;
WHEREAS, All American Pipeline Company, a Texas corporation ("All
American"), has previously formed Gathering LLC as a wholly owned subsidiary of
All American and has caused its subsidiary Celeron Gathering Corporation, a
Delaware corporation ("CGC"), to merge into Gathering LLC;
WHEREAS, PAAI has previously formed PAAI LLC as a wholly-owned
subsidiary of PAAI to hold one share of All American stock;
WHEREAS, All American has previously adopted articles of conversion
and converted to All American L.P. in which PAAI holds a .001% general partner
interest and a 98.999% limited partner interest (such limited partner interest,
the "All American LP Interest"), and PAAI LLC holds a 1% limited partner
interest;
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, All American L.P. will assume $175 million of PAAI's
outstanding debt and will distribute its ownership interest in Gathering LLC
(the "Gathering LLC Interest") to PAAI;
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WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, each of Plains Marketing & Transportation Inc., a Delaware
corporation ("Plains Transportation"), Plains Terminal & Transfer Corporation, a
Delaware corporation ("Plains Terminal"), PLX Crude Lines Inc., a Delaware
corporation ("PLX Crude"), and PLX Ingleside, Inc., a Delaware corporation ("PLX
Ingleside"), will be merged with and into Plains Resources;
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby Celeron Trading & Transportation Company, a Delaware
corporation ("CT&T"), shall be merged with and into PAAI;
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, PAAI and the Partnership have entered into that certain
Amended and Restated Agreement of Limited Partnership of Plains Marketing (the
"Operating Partnership Agreement");
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, PAAI and the Organizational Limited Partner have entered
into that certain Second Amended and Restated Agreement of Limited Partnership
of the Partnership (the "Partnership Agreement");
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
DEFINITIONS; CONCURRENT TRANSACTIONS
1.1 Definitions. The following capitalized terms shall have the meanings
given below.
"Agreement" means this Contribution, Conveyance and Assumption
Agreement.
"All American" has the meaning assigned to such term in the Recitals
to this Agreement.
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"Additional All American L.P. Interest" has the meaning assigned to
such term in Section 2.3.
"All American L.P." has the meaning assigned to such term in the
opening paragraph of this Agreement.
"All American LP Interest" has the meaning assigned to such term in
the Recitals to this Agreement.
"Assets" means the Plains Assets and the PAAI Assets.
"Business" has the meaning assigned to such term in the Recitals to
this Agreement.
"CGC" has the meaning assigned to such term in the Recitals to this
Agreement.
"Common Units" means common limited partner interests in the
Partnership.
"Conveyance, Assignment and Bill of Sale" means a Conveyance,
Assignment and Bill of Sale in recordable form from each of Plains Resources and
PAAI, as the case may be, to Plains Marketing, the form of which is attached
hereto as Exhibit A.
"CT&T" has the meaning assigned to such term in the Recitals to this
Agreement.
"CT&T Assets" means all of the assets owned, leased or held by CT&T,
as of the Effective Time, of every kind and description, whether tangible or
intangible, whether real, personal or mixed, and wherever located, including,
without limitation, all of the crude oil inventory (line fill) owned by CT&T and
located in the crude oil pipeline system owned by All American L.P.
"Cushing Terminal" means the crude oil terminal and storage facility
located in Payne and Lincoln Counties, Oklahoma, including, without limitation,
the real property and other property interests described in that certain
Conveyance, Assignment and Bill of Sale (Cushing) of even date herewith from
Plains Resources to Plains Marketing (a copy of the form of which is attached
hereto
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as Exhibit A) along with the Plains Midstream Subsidiaries' Assets described
below that are a part of or are used exclusively in connection with the crude
oil terminal and storage facility:
(i) storage tanks, stations, substations, terminal facilities and
related properties and assets, along with all crude oil inventory located
in such facilities;
(ii) all motor vehicles, tractors, trailers, tanks, railcars, other
vehicles, machinery and related equipment, whether owned or leased;
(iii) every contract, agreement, arrangement, grant, gift, trust or
other arrangement or understanding of any kind;
(iv) any and all rights, claims and causes of action under warranties,
insurance policies, contracts and related rights;
(v) communication equipment, computer equipment and software and
leasehold interests therein;
(vi) all know-how, every trade secret, every customer list and all
other confidential information of every kind;
(vii) every customer relationship, employee relationship, supplier
relationship and other relationship of any kind;
(viii) every other proprietary right of any kind;
(ix) all governmental licenses, permits, approvals, franchises,
registrations and authorizations of every kind;
(x) copies of all of the books, records, papers and instruments,
including without limitation, accounting and financial records;
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(xi) any and all monies, rents, revenues, accounts receivable or other
proceeds receivable;
(xii) all deposits, prepayments and prepaid expenses;
(xiii) all unbilled receivables;
(xiv) all trade names, trademarks, service marks, logos, marks and
symbols of any kind, together with all goodwill associated therewith and
all other trade names, trademarks and service marks;
(xv) all rights, benefits, privileges and appurtenances pertaining to
any of the foregoing;
excluding, however, any of such assets that constitute Plains Excluded
Assets.
"Delaware Act" has the meaning assigned to such term in the Recitals
to this Agreement.
"Effective Time" means 12:01 a.m. Eastern Standard Time on November
23, 1998.
"Existing Indebtedness" means indebtedness, liabilities and
obligations of PAAI under that certain $325 million Senior Secured Credit
Facility dated July 30, 1998 with ING (U.S.) Capital Corporation, as
Administrative Agent, executed in connection with the acquisition of all of the
capital stock of CT&T and All American by PAAI.
"Gathering LLC" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Gathering LLC Interest" has the meaning assigned to such term in the
Recitals to this Agreement.
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"Ingleside Terminal" means the crude oil terminal and storage facility
located in San Patricio County, Texas, including, without limitation, the real
property and other property interests described in that certain Conveyance,
Assignment and Bill of Sale (Ingleside) of even date herewith from Plains
Resources to Plains Marketing (a copy of the form of which is attached hereto as
Exhibit A) along with the Plains Midstream Subsidiaries' Assets described below
that are a part of or are used exclusively in connection with the crude oil
terminal and storage facility:
(i) storage tanks, stations, substations, terminal facilities and
related properties and assets, along with all crude oil inventory located
in such facilities;
(ii) all motor vehicles, tractors, trailers, tanks, railcars, other
vehicles, machinery and related equipment, whether owned or leased;
(iii) every contract, agreement, arrangement, grant, gift, trust or
other arrangement or understanding of any kind;
(iv) any and all rights, claims and causes of action under warranties,
insurance policies, contracts and related rights;
(v) communication equipment, computer equipment and software and
leasehold interests therein;
(vi) all know-how, every trade secret, every customer list and all
other confidential information of every kind;
(vii) every customer relationship, employee relationship, supplier
relationship and other relationship of any kind;
(viii) every other proprietary right of any kind;
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(ix) all governmental licenses, permits, approvals, franchises,
registrations and authorizations of every kind;
(x) copies of all of the books, records, papers and instruments,
including without limitation, accounting and financial records;
(xi) any and all monies, rents, revenues, accounts receivable or other
proceeds receivable;
(xii) all deposits, prepayments and prepaid expenses;
(xiii) all unbilled receivables;
(xiv) all trade names, trademarks, service marks, logos, marks and
symbols of any kind, together with all goodwill associated therewith and
all other trade names, trademarks and service marks;
(xv) all rights, benefits, privileges and appurtenances pertaining to
any of the foregoing;
excluding, however, any of such assets that constitute Plains Excluded
Assets.
"Laws" means any and all laws, statutes, ordinances, rules or
regulations promulgated by a governmental authority, orders of a governmental
authority, judicial decisions, decisions of arbitrators or determinations of any
governmental authority or court.
"Operating Partnership Agreement" has the meaning assigned to such
term in the Recitals to this Agreement.
"Organizational Limited Partner" has the meaning assigned to such term
in the Recitals to this Agreement.
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"PAAI" has the meaning assigned to such term in the opening paragraph
of this Agreement.
"PAAI Assets" means the CT&T Assets and the Gathering LLC Interest of
PAAI.
"PAAI Assumed Liabilities" means all of PAAI's liabilities arising
from or relating to the PAAI Assets or the Business, as of the Effective Time,
of every kind, character and description, whether known or unknown, accrued or
contingent, and whether or not reflected on the books and records of PAAI as of
the Effective Time, excluding, however, any of such liabilities that constitute
PAAI Excluded Liabilities.
"PAAI Excluded Liabilities" means (i) all of the liabilities and
obligations of CT&T and CGC for the Existing Indebtedness, (ii) all federal,
state and local income tax liabilities attributable to operation of the PAAI
Assets prior to the Effective Time, including any such income tax liabilities
that may result from the consummation of the transactions contemplated by this
Agreement and (iii) all of the liabilities that arise pursuant to the
indemnification obligation of PAAI under the Omnibus Agreement dated of even
date with this Agreement among Plains Resources, PAAI, the Partnership, Plains
Marketing and All American L.P.
"PAAI LLC" has the meaning assigned to such term in the Recitals to
this Agreement.
"PAAI OLP Interest" has the meaning assigned to such term in Section
2.1.
"Partnership" has the meaning assigned to such term in the opening
paragraph of this Agreement.
"Partnership Agreement" has the meaning assigned to such term in the
Recitals to this Agreement.
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"Plains Assets" means (a) the Cushing Terminal and the Ingleside
Terminal and (b) the Plains Midstream Subsidiaries' Assets described below, to
the extent the following comprise a part of or are used exclusively in
connection with the operation of the Business, and without duplication of the
Cushing Terminal and the Ingleside Terminal:
(i) the real property and other property interests described in that
certain Conveyance, Assignment and Bill of Sale (Other Assets) of even date
herewith from Plains Resources to Plains Marketing;
(ii) storage tanks, stations, substations, terminal facilities and
related properties and assets, along with all crude oil inventory located
in such facilities;
(iii) all motor vehicles, tractors, trailers, tanks, railcars, other
vehicles, machinery and related equipment, whether owned or leased;
(iv) every contract, agreement, arrangement, grant, gift, trust or
other arrangement or understanding of any kind;
(v) any and all rights, claims and causes of action under warranties,
insurance policies, contracts or related rights;
(vi) communication equipment, computer equipment and software and
leasehold interests therein;
(vii) all know-how, every trade secret, every customer list and all
other confidential information of every kind;
(viii) every customer relationship, employee relationship, supplier
relationship and other relationship of any kind;
(ix) every other proprietary right of any kind;
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(x) all governmental licenses, permits, approvals, franchises,
registrations and authorizations of every kind;
(xi) copies of all of the books, records, papers and instruments,
including without limitation, accounting and financial records;
(xii) any and all monies, rents, revenues, accounts receivable or
other proceeds receivable;
(xiii) all deposits, prepayments and prepaid expenses;
(xiv) all unbilled receivables;
(xv) all trade names, trademarks, service marks, logos, marks and
symbols of any kind, together with all goodwill associated therewith and
all other trade names, trademarks and service marks;
(xvi) all rights, benefits, privileges and appurtenances pertaining to
any of the foregoing;
excluding, however, any of such assets that constitute Plains Excluded
Assets.
"Plains Assumed Liabilities" means all of Plains Resources'
liabilities arising from or relating to the Plains Assets or the Business, as of
the Effective Time, of every kind, character and description, whether known or
unknown, accrued or contingent, and whether or not reflected on the books and
records of Plains Resources as of the Effective Time, specifically including the
indebtedness, obligations and liabilities under that certain Credit Agreement
dated July 30, 1998 among Plains Transportation, BankBoston, N.A., as
Administrative Agent and certain other Agents and Lenders party thereto
providing for loans and letters of credit up to the amount of $175 million,
excluding, however, any of such liabilities that constitute Plains Excluded
Liabilities.
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"Plains Excluded Assets" means the Employment Agreement between Plains
Resources and Harry Pefanis.
"Plains Excluded Liabilities" means (i) all of the liabilities that
arise pursuant to the indemnification obligations of Plains Resources under the
Omnibus Agreement dated of even date with this Agreement among Plains Resources,
PAAI, the Partnership, Plains Marketing and All American L.P., (ii) the
Subsidiary Debt and (iii) all federal, state and local income tax liabilities
attributable to operation of the Plains Assets prior to the Effective Time,
including any such income tax liabilities that may result from the consummation
of the transactions contemplated by this Agreement.
"Plains Grantors" means Plains Resources and PAAI.
"Plains Marketing" has the meaning assigned to such term in the
opening paragraph of this Agreement.
"Plains Midstream Subsidiaries" means, collectively, Plains
Transportation, Plains Terminal, PLX Crude and PLX Ingleside.
"Plains Midstream Subsidiaries' Assets" means, collectively, all of
the assets, properties, titles, interests, benefits and rights owned by each of
the Plains Midstream Subsidiaries at the time of its merger into Plains
Resources, which, as a result of such merger, became the assets, properties,
titles, interests, benefits and rights of Plains Resources.
"Plains Resources" has the meaning assigned to such term in the
opening paragraph of this Agreement.
"Plains Terminal" has the meaning assigned to such term in the
Recitals to this Agreement.
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"Plains Transportation" has the meaning assigned to such term in the
Recitals to this Agreement.
"PLX Crude" has the meaning assigned to such term in the Recitals to
this Agreement.
"PLX Ingleside" has the meaning assigned to such term in the Recitals
to this Agreement.
"Restriction" has the meaning assigned to such term in Section 9.2.
"Restriction-Asset" has the meaning assigned to such term in Section
9.2.
"Specific Conveyances" has the meaning assigned to such term in
Section 2.9.
"Subordinated Units" means subordinated limited partner interests in
the Partnership.
"Subsidiary Debt" shall mean (i) all indebtedness of the Plains
Midstream Subsidiaries owed to Plains Resources that was extinguished in the
merger of the Plains Midstream Subsidiaries into Plains Resources and (ii) all
indebtedness owed by the Plains Midstream Subsidiaries to affiliates of Plains
Resources, other than the Plains Midstream Subsidiaries.
1.2 Concurrent Transactions.
(a) All American L.P. hereby assumes and agrees to pay $175 million of
Existing Indebtedness.
(b) All American L.P. hereby distributes 100% of its ownership
interest in Gathering LLC to PAAI.
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ARTICLE II
CONTRIBUTIONS AND SALE OF ASSETS
2.1 Contribution of Assets by PAAI to Plains Marketing. PAAI hereby
grants, contributes, transfers and conveys to Plains Marketing, its successors
and assigns, for its and their own use forever, all right, title and interest in
and to the PAAI Assets in exchange for (i) the continuation of a 1.0101% general
partner interest and a limited partner interest (such limited partner interest,
the "PAAI OLP Interest") in Plains Marketing and (ii) other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
Plains Marketing hereby accepts the PAAI Assets, as a contribution to the
capital of Plains Marketing.
TO HAVE AND TO HOLD the PAAI Assets unto Plains Marketing, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in any wise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.2 Contribution by PAAI to the Partnership. PAAI hereby grants,
contributes, transfers and conveys to the Partnership, its successors and
assigns, for its and their own use forever, all right, title and interest of
PAAI in and to the PAAI OLP Interest and the All American LP Interest in
exchange for (i) a 1% general partner interest in the Partnership, (ii)
9,859,581 Subordinated Units and 6,974,239 Common Units and (iii) other good and
valuable consideration, the sufficiency of which is hereby acknowledged, and the
Partnership hereby accepts the PAAI OLP Interest and the All American LP
Interest, as a contribution to the capital of the Partnership.
TO HAVE AND TO HOLD the PAAI OLP Interest and the All American L.P.
Interest unto the Partnership, its successors and assigns, together with all and
singular the rights and
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appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.3 Contribution by PAAI LLC to the Partnership. PAAILLC hereby grants,
contributes, transfers and conveys to the Partnership, its successors and
assigns, for its and their own use forever, all right, title and interest of
PAAILLC in and to its 1% limited partner interest (the "Additional All American
L.P. Interest") in All American L.P. in exchange for 170,038 Subordinated Units
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, and the Partnership hereby accepts the 1% limited partner interest
in All American L.P., as a contribution to the capital of the Partnership.
TO HAVE AND TO HOLD the Additional All American L.P. Interest unto the
Partnership, its successors and assigns, together with all and singular the
rights and appurtenances thereto in anywise belonging, subject, however, to the
terms and conditions stated in this Agreement, forever.
2.4 Public Cash Contribution. The parties to this Agreement acknowledge a
cash contribution of $244,689,500 from the public in exchange for Common Units.
2.5 Partnership Cash Distribution and Contribution. PAAI acknowledges
that the Partnership has distributed cash in the amount of $147,989,500 to PAAI
as a reimbursement for certain capital expenditures and Plains Marketing
acknowledges that the Partnership has contributed (i) cash in the amount of
$96,700,000 to Plains Marketing and (ii) all of the syndication costs incurred
by the Partnership in connection with the public offering of the Common Units.
2.6 Sale of Assets by Plains Resources. Plains Resources hereby sells and
conveys to Plains Marketing, its successors and assigns, for its and their own
use forever, all right, title and
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interest in and to the Plains Assets in exchange for (i) the payment of $93.7
million in cash, (ii) the assumption of certain liabilities by Plains Marketing
as provided in Section 4.1 and (iii) other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
TO HAVE AND TO HOLD the Plains Assets unto Plains Marketing, its
successors and assigns, together with all and singular, the rights and
appurtenances thereto in any wise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.7 PAAI Use of Proceeds. The parties to this Agreement acknowledge that
PAAI has used a portion of the cash received from the Partnership in Section 2.5
above to discharge approximately $110 million of the Existing Indebtedness plus
all accrued and unpaid interest, prepayment premiums, fees and expenses in
connection with the Existing Indebtedness and has distributed the balance of
cash to Plains Resources.
2.8 Contribution by the Partnership to Plains Marketing. The Partnership
hereby grants, contributes, transfers and conveys to Plains Marketing, its
successors and assigns, for its and their own use forever, all right, title and
interest of the Partnership in and to the All American LP Interest and the
Additional All American L.P. Interest, as a contribution to the capital of
Plains Marketing, and Plains Marketing hereby accepts the All American LP
Interest and the Additional All American L.P. Interest, as a contribution to the
capital of Plains Marketing.
TO HAVE AND TO HOLD the All American LP Interest and the Additional
All American L.P. Interest, unto Plains Marketing, its successors and assigns,
together with all and singular the rights and appurtenances thereto in anywise
belonging, subject, however, to the terms and conditions stated in this
Agreement, forever.
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2.9 Specific Conveyances. To further evidence the asset conveyances
recited in this Article II and more fully and effectively convey record title
with respect to the real property included in the Assets, Plains Resources has
executed and delivered to Plains Marketing certain Conveyance, Assignment and
Bill of Sale instruments (the "Specific Conveyances"). The Specific Conveyances
shall evidence and perfect the sale and contribution made by this Agreement and
shall not constitute a second conveyance of the Plains Assets or interests
therein and shall be subject to the terms of this Agreement. The Specific
Conveyances are not intended to modify, and shall not modify, any of the terms,
covenants and conditions herein set forth and are not intended to create, and
shall not create, any additional covenants or warranties of or by Plains
Resources.
ARTICLE III
ADDITIONAL TRANSACTIONS
3.1 Merger of Gathering LLC and Plains Marketing. The parties to this
Agreement acknowledge that, concurrent with the transactions referred to in
Article II of this Agreement, Gathering LLC has been merged with and into Plains
Marketing.
3.2 PAAI Contribution to PAAI LLC. PAAI hereby grants, contributes,
transfers and conveys to PAAI LLC, its successors and assigns, for its and their
own use forever, all right, title and interest of PAAI in and to all of the
Subordinated Units and Common Units held by PAAI as a contribution to the
capital of PAAI LLC, and PAAI LLC hereby accepts all of such Subordinated Units
and Common Units, as a contribution to the capital of PAAI LLC.
TO HAVE AND TO HOLD such Subordinated Units and Common Units unto PAAI
LLC, its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
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3.3 All American L.P. Refinancing. The parties to this Agreement
acknowledge that All American L.P. shall refinance the portion of Existing
Indebtedness assumed in Section 1.2(a) above.
ARTICLE IV
ASSUMPTION OF CERTAIN LIABILITIES
4.1. Assumption of Certain Plains Liabilities by Plains Marketing. In
connection with the sale and transfer of the Plains Assets to Plains Marketing
by Plains Resources, Plains Marketing hereby assumes and agrees to duly and
timely pay, perform and discharge the Plains Assumed Liabilities, to the full
extent that Plains Resources has been heretofore or would have been in the
future, were it not for the execution and delivery of this Agreement, obligated
to pay, perform and discharge the Plains Assumed Liabilities; provided, however,
that said assumption and agreement to duly and timely pay, perform and discharge
the Plains Assumed Liabilities shall not (i) increase the obligation of Plains
Marketing with respect to the Plains Assumed Liabilities beyond that of Plains
Resources, (ii) waive any valid defense that was available to Plains Resources
with respect to the Plains Assumed Liabilities or (iii) enlarge any rights or
remedies of any third party under any of the Plains Assumed Liabilities.
4.2. Assumption of Certain PAAI Liabilities by Plains Marketing. In
connection with the contribution and transfer of the PAAI Assets to Plains
Marketing by PAAI, Plains Marketing hereby assumes and agrees to duly and timely
pay, perform and discharge the PAAI Assumed Liabilities, to the full extent that
PAAI has been heretofore or would have been in the future, were it not for the
execution and delivery of this Agreement, obligated to pay, perform and
discharge the PAAI Assumed Liabilities; provided, however, that said assumption
and agreement to duly and timely pay, perform and discharge the PAAI Assumed
Liabilities shall not (i) increase the obligation of Plains
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Marketing with respect to the PAAI Assumed Liabilities beyond that of PAAI, (ii)
waive any valid defense that was available to PAAI with respect to the PAAI
Assumed Liabilities or (iii) enlarge any rights or remedies of any third party
under any of the PAAI Assumed Liabilities.
ARTICLE V
INDEMNIFICATION
5.1. Indemnification With Respect to Plains Excluded Liabilities. Plains
Resources shall indemnify, defend and hold harmless the Partnership, Plains
Marketing, their respective officers and directors and their respective
successors and assigns from and against any and all claims, demands, costs,
liabilities (including, without limitation, liabilities arising by way of active
or passive negligence) and expenses (including court costs and reasonable
attorneys' fees) of every kind, character and description, whether known or
unknown, accrued or contingent, and whether or not reflected on the books and
records of Plains Resources as of the Effective Time, arising from or relating
to (i) the Plains Excluded Liabilities or (ii) any failure of Plains Resources
to comply with any applicable bulk sales law of any jurisdiction in connection
with the transfer of the Plains Assets to Plains Marketing.
5.2. Indemnification With Respect to PAAI Excluded Liabilities. PAAI shall
indemnify, defend and hold harmless the Partnership, Plains Marketing, their
respective officers and directors and their respective successors and assigns
from and against any and all claims, demands, costs, liabilities (including,
without limitation, liabilities arising by way of active or passive negligence)
and expenses (including court costs and reasonable attorneys' fees) of every
kind, character and description, whether known or unknown, accrued or
contingent, and whether or not reflected on the books and records of PAAI as of
the Effective Time, arising from or relating to (i) the PAAI
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Excluded Liabilities or (ii) any failure of PAAI to comply with any applicable
bulk sales law of any jurisdiction in connection with the transfer of the PAAI
Assets to Plains Marketing.
5.3. Indemnification With Respect to Plains Assumed Liabilities.
Plains Marketing shall indemnify, defend and hold harmless Plains Resources, its
officers and directors, its successors and assigns from and against any and all
claims, demands, costs, liabilities (including, without limitation, liabilities
arising by way of active or passive negligence) and expenses (including court
costs and reasonable attorneys' fees) of every kind, character and description,
whether known or unknown, accrued or contingent, and whether or not reflected on
the books and records of Plains Resources as of the Effective Time, arising from
or relating to the Plains Assumed Liabilities.
5.4. Indemnification With Respect to PAAI Assumed Liabilities. Plains
Marketing shall indemnify, defend and hold harmless PAAI, its officers and
directors, its successors and assigns from and against any and all claims,
demands, costs, liabilities (including, without limitation, liabilities arising
by way of active or passive negligence) and expenses (including court costs and
reasonable attorneys' fees) of every kind, character and description, whether
known or unknown, accrued or contingent, and whether or not reflected on the
books and records of PAAI as of the Effective Time, arising from or relating to
the PAAI Assumed Liabilities.
ARTICLE VI
TITLE MATTERS
6.1. Encumbrances. The contribution and sale of the Assets made under
this Agreement are made expressly subject to (a) all recorded and unrecorded
liens, encumbrances, agreements, defects, restrictions, adverse claims and all
laws, rules, regulations, ordinances, judgments and orders of governmental
authorities or tribunals having or asserting jurisdiction over the Assets or the
Business
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and operations conducted thereon or therewith, in each case to the extent the
same are valid and enforceable and affect the Assets, including, without
limitation, all matters that a current on the ground survey or visual inspection
of the Assets would reflect, (b) the Plains Assumed Liabilities, (c) the PAAI
Assumed Liabilities and (d) all matters contained in the Specific Conveyances.
6.2. Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales Laws.
(a) THE PLAINS GRANTORS ARE CONVEYING THE ASSETS "AS IS" WITHOUT
REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY (ALL OF
WHICH THE PLAINS GRANTORS HEREBY DISCLAIM), AS TO (i) TITLE, (ii) FITNESS
FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR DESIGN OR QUALITY, OR
(iii) ANY OTHER MATTER WHATSOEVER. THE PROVISIONS OF THIS SECTION 6.2 HAVE
BEEN NEGOTIATED BY PLAINS MARKETING AND THE PLAINS GRANTORS AFTER DUE
CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF
ANY REPRESENTATIONS OR WARRANTIES OF THE PLAINS GRANTORS, WHETHER EXPRESS,
IMPLIED OR STATUTORY, WITH RESPECT TO THE ASSETS THAT MAY ARISE PURSUANT TO
ANY LAW NOW OR HEREAFTER IN EFFECT, OR OTHERWISE, EXCEPT AS EXPRESSLY SET
FORTH HEREIN.
(b) The contribution of the Assets made under this Agreement is made
with full rights of substitution and subrogation of Plains Marketing, and
all persons claiming by, through and under Plains Marketing, to the extent
assignable, in and to all covenants and warranties by the predecessors-in-
title of the Plains Grantors, and with full subrogation of all
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rights accruing under applicable statutes of limitation and all rights of
action of warranty against all former owners of the Assets.
(c) The Plains Grantors and Plains Marketing agree that the
disclaimers contained in this Section 6.2 are "conspicuous" disclaimers.
Any covenants implied by statute or law by the use of the words "grant,"
"convey," "bargain," "sell," "assign," "transfer," "deliver," or "set over"
or any of them or any other words used in this Agreement are hereby
expressly disclaimed, waived and negated.
(d) Each of the parties hereto hereby waives compliance with any
applicable bulk sales law or any similar law in any applicable jurisdiction
in respect of the transactions contemplated by this Agreement.
ARTICLE VII
FURTHER ASSURANCES
7.1. Further Assurances. From time to time after the date hereof, and
without any further consideration, Plains Resources or PAAI, as the case may be,
shall execute, acknowledge and deliver all such additional deeds, assignments,
bills of sale, conveyances, instruments, notices, releases, acquittances and
other documents, and will do all such other acts and things, all in accordance
with applicable law, as may be necessary or appropriate (i) more fully to assure
Plains Marketing, its successors and assigns, all of the properties, rights,
titles, interests, estates, remedies, powers and privileges by this Agreement
granted to Plains Marketing or intended so to be and (ii) more fully and
effectively to vest in the Partnership and its successors and assigns beneficial
and record title to the interests hereby contributed and assigned to the
Partnership or intended so to be and to more fully and effectively carry out the
purposes and intent of this Agreement.
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7.2. Partnership and Operating Partnership Assurances. From time to time
after the date hereof, and without any further consideration, the Partnership
and Plains Marketing shall execute, acknowledge and deliver all such additional
instruments, notices and other documents, and will do all such other acts and
things, all in accordance with applicable law, as may be necessary or
appropriate to more fully and effectively carry out the purposes and intent of
this Agreement.
7.3. Post-Closing Adjustment. On or before December 31, 1998, PAAI shall
prepare balance sheets as of the Effective Time for All American L.P. and Plains
Marketing and determine the aggregate excess net working capital of All American
L.P. and Plains Marketing. In the event such aggregate excess net working
capital of All American L.P. and Plains Marketing does not equal $8 million,
PAAI shall either (i) if the aggregate excess net working capital is less than
$8 million, contribute cash sufficient to cause such aggregate excess net
working capital to equal $8 million, or (ii) if the aggregate excess net working
capital is more than $8 million, be distributed cash in an amount equal to the
excess over $8 million.
ARTICLE VIII
POWER OF ATTORNEY
The Plains Grantors hereby constitute and appoint Plains Marketing, its
successors and assigns, their true and lawful attorney-in-fact with full power
of substitution for it and in its name, place and stead or otherwise on behalf
of the Plains Grantors, their successors and assigns, and for the benefit of
Plains Marketing, its successors and assigns, to demand and receive from time to
time the Assets and to execute in the name of the Plains Grantors and their
successors and assigns instruments of conveyance, instruments of further
assurance and to give receipts and releases in respect of the same, and from
time to time to institute and prosecute in the name of Plains Marketing
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or the Plains Grantors for the benefit of Plains Marketing, as may be
appropriate, any and all proceedings at law, in equity or otherwise which Plains
Marketing, its successors and assigns may deem proper in order to collect,
assert or enforce any claims, rights or titles of any kind in and to the Assets,
and to defend and compromise any and all actions, suits or proceedings in
respect of any of the Assets and to do any and all such acts and things in
furtherance of this Agreement as Plains Marketing, its successors or assigns
shall deem advisable. The Plains Grantors hereby declare that the appointment
hereby made and the powers hereby granted are coupled with an interest and are
and shall be irrevocable and perpetual and shall not be terminated by any act of
the Plains Grantors, their successors or assigns or by operation of law.
ARTICLE IX
MISCELLANEOUS
9.1. Order of Completion of Transactions; Effective Time.
(a) The transactions provided for in Articles I, II, III and IV of
this Agreement shall be completed on the date of this Agreement in the
following order:
First, the transactions provided for in Article I shall be completed;
Second, the transactions provided for in Article II shall be
completed;
Third, the transactions provided for in Article III shall be
completed; and
Fourth, the transactions provided for in Article IV shall be
completed.
(b) The sale of the Assets to Plains Marketing shall be effective for
all purposes as of the Effective Time.
9.2. Consents; Restriction on Assignment. If there are prohibitions
against or conditions to the conveyance of one or more portions of the Assets
without the prior written consent of third
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parties, including, without limitation, governmental agencies (other than
consents of a ministerial nature which are normally granted in the ordinary
course of business), which if not satisfied would result in a breach of such
prohibitions or conditions or would give an outside party the right to terminate
Plains Marketing's rights with respect to such portion of the Assets (herein
called a "Restriction"), then any provision contained in this Agreement to the
contrary notwithstanding, the transfer of title to or interest in each such
portion of the Assets (herein called the "Restriction-Asset") pursuant to this
Agreement shall not become effective unless and until such Restriction is
satisfied, waived or no longer applies. When and if such a Restriction is so
satisfied, waived or no longer applies, to the extent permitted by applicable
law and any applicable contractual provisions, the assignment of the
Restriction-Asset subject thereto shall become effective automatically as of the
Effective Time, without further action on the part of Plains Marketing or either
of the Plains Grantors. The Plains Grantors and Plains Marketing agree to use
their reasonable best efforts to obtain satisfaction of any Restriction on a
timely basis. The description of any portion of the Assets as a "Restriction-
Asset" shall not be construed as an admission that any Restriction exists with
respect to the transfer of such portion of the Assets. In the event that any
Restriction-Asset exists, the Plains Grantors agree to hold such Restriction-
Asset in trust for the exclusive benefit of Plains Marketing and to otherwise
use their reasonable best efforts to provide Plains Marketing with the benefits
thereof, and the Plains Grantors will enter into other agreements, or take such
other action as they deem necessary, in order to help ensure that Plains
Marketing has the assets and concomitant rights necessary to enable it to
operate the Assets contributed to Plains Marketing in all material respects as
they were operated prior to the Effective Time.
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9.3. Costs. Plains Marketing shall pay all sales, use and similar taxes
arising out of the contributions, conveyances and deliveries to be made
hereunder, and shall pay all documentary, filing, recording, transfer, deed, and
conveyance taxes and fees required in connection therewith. In addition, Plains
Marketing shall be responsible for all costs, liabilities and expenses
(including court costs and reasonable attorneys' fees) incurred in connection
with the satisfaction or waiver of any Restriction pursuant to Section 9.2.
9.4. Headings: References: Interpretation. All Article and Section
headings in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the provisions hereof.
The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including,
without limitation, all Schedules and Exhibits attached hereto, and not to any
particular provision of this Agreement. All references herein to Articles,
Sections, Schedules and Exhibits shall, unless the context requires a different
construction, be deemed to be references to the Articles and Sections of this
Agreement and the Schedules and Exhibits attached hereto, and all such Schedules
and Exhibits attached hereto are hereby incorporated herein and made a part
hereof for all purposes. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders, and the singular shall include the plural and vice versa. The use
herein of the word "including" following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not non-limiting language (such as "without limitation,"
"but not limited to," or words of similar import) is used with reference
thereto,
26
but rather shall be deemed to refer to all other items or matters that could
reasonably fall within the broadest possible scope of such general statement,
term or matter.
9.5. Successors and Assigns. The Agreement shall be binding upon and
inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
9.6. No Third Party Rights. The provisions of this Agreement are
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
9.7. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
9.8. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas applicable to contracts made
and to be performed wholly within such state without giving effect to conflict
of law principles thereof, except to the extent that it is mandatory that the
law of some other jurisdiction, wherein the Assets are located, shall apply.
9.9. Severability. If any of the provisions of this Agreement are held
by any court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Agreement at the time of
execution of this Agreement.
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9.10. Deed; Bill of Sale; Assignment. To the extent required by
applicable law, this Agreement shall also constitute a "deed," "bill of sale" or
"assignment" of the Assets.
9.11. Amendment or Modification. This Agreement may be amended or
modified from time to time only by the written agreement of all the parties
hereto.
9.12 Integration. This Agreement supersedes all previous understandings
or agreements between the parties, whether oral or written, with respect to its
subject matter. This document is an integrated agreement which contains the
entire understanding of the parties. No understanding, representation, promise
or agreement, whether oral or written, is intended to be or shall be included in
or form part of this Agreement unless it is contained in a written amendment
hereto executed by the parties hereto after the date of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
PLAINS RESOURCES INC., a Delaware corporation
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice President
and Chief Financial Officer
PLAINS MARKETING, L.P., a Delaware limited
partnership
By: Plains All American Inc., a Delaware
corporation, as general partner
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice
President and Chief Financial Officer
PLAINS ALL AMERICAN PIPELINE, L.P., a
Delaware limited partnership
By: Plains All American Inc., a Delaware
corporation, as general partner
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice
President and Chief Financial Officer
29
ALL AMERICAN PIPELINE, L.P., a Texas limited
partnership
By: Plains All American Inc., a Delaware
corporation, as general partner
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice
President and Chief Financial Officer
PLAINS ALL AMERICAN INC., a Delaware corporation
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice President
and Chief Financial Officer
PAAI LLC, a Delaware limited liability company
By: Plains All American Inc., a Delaware
corporation, its sole member
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice
President and Chief Financial Officer
GATHERING LLC, a Delaware limited liability
company
By: Plains All American Inc., a Delaware
corporation, its sole member
By: /s/ Phillip D. Kramer
---------------------
Phillip D. Kramer, Executive Vice
President and Chief Financial Officer
30