EXECUTION COPY
EXHIBIT 99.9
FIRST AMENDMENT TO UNIT TRANSFER AND CONTRIBUTION AGREEMENT;
WAIVER AND CONSENT
FIRST AMENDMENT (the "First Amendment"), dated as of June 8, 2001 to the
Unit Transfer and Contribution Agreement among Kafu Holdings, LLC, PAAI LLC,
Plains Resources Inc. and Plains All American Inc. dated as of May 8, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Agreement").
WHEREAS the parties hereto have previously entered into the Agreement.
WHEREAS the parties hereto wish to amend the Agreement pursuant to Section
9.07 thereof in the manner set forth below and consent to certain transactions
in respect of Section 5.11 of the Agreement.
Accordingly, the parties hereto agree as follows:
1. Definitions. All terms used herein which are defined in the Agreement
and not otherwise defined herein have the meanings defined in the Agreement.
2. WHEREAS clauses. (a) The second WHEREAS clause is amended and restated
to state in its entirety as follows:
WHEREAS, Seller desires to sell 1,985,865 Subordinated Units to Buyer
(the "BUYER SUBORDINATED UNITS") and Buyer desires to purchase such
Buyer Subordinated Units, on the terms and subject to the conditions
set forth in this Agreement;
(b) The fourth WHEREAS clause is amended and restated to state in its
entirety as follows:
WHEREAS, Rodeo, Inc., as the initial member of Newco GP LLC, the
general partner of Newco LP, and as the initial limited partner of
Newco LP desires at the Closing to (a) amend and restate the Initial
Newco GP LLC Agreement to be as set forth in Exhibit E hereto (the
"NEWCO GP LLC OPERATING AGREEMENT"), (b) to amend and restate the
Initial Newco LP Agreement to be as set forth in Exhibit F hereto (the
"NEWCO LP PARTNERSHIP AGREEMENT"), (c) to admit Buyer as a member of
Newco GP LLC with a Percentage Interest (as defined in the Newco GP
LLC Operating Agreement) of 19.80% of Newco GP LLC (the "BUYER NEWCO
GP LLC INTEREST") in exchange for an initial capital contribution of
$148,500 that will then be distributed to Rodeo, Inc. and (d) admit
Buyer as a limited partner of Newco LP with a Partnership Percentage
(as defined in the Newco LP Partnership Agreement) of 19.602% of Newco
LP (the "BUYER NEWCO LP
INTEREST") in exchange for an initial capital contribution of
$14,701,500 that will then be distributed to Rodeo, Inc.;
3. Payment of Purchase Price. Section 2.02 of the Agreement is amended and
restated to state in its entirely as follows:
Payment of Purchase Price. At the Closing, Buyer shall pay to Seller
the Purchase Price by (i) delivering 16,200 shares of Series F
Preferred to the Seller with an aggregate value of $31,713,573 (the
"SERIES F AMOUNT" and (ii) by wire transfer of the Purchase Price less
than the Series F Amount of immediately available funds to the bank
account set forth on a notice given by Seller to Buyer not later than
three (3) Business Days prior to the Closing Date; provided, however,
that if the Closing has not occurred by June 9, 2001, the Series F
Amount shall be increased by an amount equal to the value of unpaid
dividends accrued on the Series F Preferred from June 9, 2001 through
the Closing Date with respect to the number of Shares of Series F
Preferred referenced in clause (i). The Purchase Price shall be
subject to adjustment pursuant to the Value Assurance Agreement.
4. Transfer of Subordinated Units. Section 5.13 of the Agreement is amended
by adding the following as subsection (d) thereto:
(d) Notwithstanding the foregoing provision of Sections 5.13(a) and
(b), or any other provision of this Agreement to the contrary, at
any time on or prior to that date which is 90 days following the
Closing Date, Buyer may transfer up to 600,000 of the
Subordinated Units held by it to First Union Investors, Inc.
("FIRST UNION"); provided, that the provisions of Section 5.13(c)
above shall be applicable to such transfer. In addition, the
provisions of this Section 5.13 shall be applicable to any future
transfers by First Union treating First Union as if it was the
"Buyer" for determining the rights and obligations of First Union
in connection with such transfer.
5. Closing Events. Section 6.02 is amended and restated to state in its
entirety as follows:
At the Closing, Rodeo, Inc. shall (i) amend and restate the Initial
Newco GP LLC Agreement to be as set forth in the Newco GP LLC
Operating Agreement, (ii) amend and restate the Initial Newco LP
Agreement to be as set forth in the Newco LP Partnership Agreement,
(iii) cause the admission of Buyer as a member of Newco GP LLC with
the Buyer Newco GP LLC Interest in exchange for an initial capital
contribution of $148,500
by Buyer that shall then be distributed to Rodeo, Inc., and (iv) cause
the admission of Buyer as a limited partner of Newco LP with the Buyer
Newco LP Interest in exchange for an initial capital contribution of
$14,701,500 by Buyer that shall then be distributed to Rodeo, Inc.
6. Consent. Buyer hereby consents to the sale of (i) up to an aggregate
amount of (a) 320,948 Subordinated Units, (b) a 3.2% Percentage Interest in
Newco GP LLC and (c) a 3.168% Partnership Percentage in Newco LP in one or more
transactions to ▇▇▇▇▇▇ Investment Management, L.P. or its affiliates (the
"▇▇▇▇▇▇ Transactions") and (ii) up to an aggregate of (a) 100,296 Subordinated
Units, (b) a 1% Percentage Interest in Newco GP LLC and (c) a 0.99% Partnership
Percentage in Newco LP to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (such amounts constituting one-half of
the Option Interests as defined in the Sable Agreement) (the "▇▇▇▇▇▇▇
Transaction") and waives any rights it may have under Section 5.11 of the
Agreement with respect to the ▇▇▇▇▇▇ Transactions and the ▇▇▇▇▇▇▇ Transaction.
7. Assignment. Kafu hereby assigns all of its rights, interests and
obligations under the Agreement to KAFU Holdings, LP ("KAFU LP") pursuant to
Section 9.06 of the Agreement and Kafu LP assumes all such rights, interest and
obligations (the "ASSIGNMENT"). Parent, Rodeo, Inc. and Seller each consent to
the Assignment.
8. Continued Effectiveness of Agreement. The parties hereto hereby
acknowledge and confirm that the Agreement to which they are a party is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that on and after the date of this First
Amendment all references in any related document to "the Agreement," "the
Transfer Agreement," "thereto," "thereof," "thereunder" or words of like import
referring to the Agreement shall mean the Agreement as amended by this First
Amendment.
9. Miscellaneous. (a) This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings are included for convenience of
reference only and shall not constitute a part of this First Amendment for any
other purpose.
* * *
IN WITNESS WHEREOF, this First Amendment has been signed on behalf of each
of the parties hereto as of the date first written above.
PLAINS RESOURCES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
PLAINS ALL AMERICAN INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
PAAI LLC
By: Plains All American Inc., its sole member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
KAFU HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
KAFU HOLDINGS, LP
By: Kafu Holdings, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director