EXHIBIT 10.3
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[Revolving Credit Facility]
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT [Revolving
Credit Facility] (this "Amendment") dated as of the 6th day of September, 2001,
by and among PLAINS MARKETING, L.P. ("US Borrower"), ALL AMERICAN PIPELINE, L.P.
and PLAINS ALL AMERICAN PIPELINE, L.P., as guarantors, FLEET NATIONAL BANK, as
Administrative Agent, THE TORONTO-DOMINION BANK, as Canadian Agent, PMC (NOVA
SCOTIA) COMPANY ("Term Borrower"), PLAINS MARKETING CANADA, L.P. ("Canadian
Revolver Borrower"), and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, US Borrower, All American, Plains MLP, Administrative Agent,
Canadian Agent, Term Borrower, Canadian Revolver Borrower and Lenders entered
into that certain Amended and Restated Credit Agreement [Revolving Credit
Facility] dated as of May 4, 2001 (as amended, supplemented, or restated to the
date hereof, the "Original Agreement") for the purposes and consideration
therein expressed, pursuant to which Lenders became obligated to make and made
loans to US Borrower, Term Borrower and Canadian Revolver Borrower as therein
provided; and
WHEREAS, US Borrower, All American, Plains MLP, Administrative Agent,
Canadian Agent, Term Borrower, Canadian Revolver Borrower and Lenders desire to
amend the Original Agreement for the purposes described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to US Borrower, Term
Borrower and Canadian Revolver Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(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)(s) 1.2.8
"Amendment" means this Third Amendment to Amended and
Restated Credit Agreement [Revolving Credit Facility].
"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.
(a) The table set forth in the definition of "Applicable Leverage Level" set
forth in Section 1.1 of the Original Agreement is hereby amended in its entirety
to read as follows:
Applicable
Leverage Level Leverage Ratio
Level I greater than or equal to 4.50 to 1.0
Level II greater than or equal to 4.25 to 1.0
but less than 4.50 to 1.0
Level III greater than or equal to 4.00 to 1.0
but less than 4.25 to 1.0
Level IV greater than or equal to 3.50 to 1.0
but less than 4.00 to 1.0
Level V greater than or equal to 3.00 to 1.0
but less than 3.50 to 1.0
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
(b) The following defined terms set forth in Section 1.1 of the Original
Agreement are hereby amended in their entirety to read as follows:
"Base Rate Loan" means any US Base Rate Loan, Term Base Rate Loan,
Term-B Base Rate Loan, or Canadian Revolver Prime Rate Loan.
"Borrowing" means a borrowing of new Loans of a single Type pursuant
to Section 2A.2 or 2B.2 or a Continuation or Conversion of existing Loans
into a single Type (and, in the case of LIBOR Loans, with the same Interest
Period) pursuant to Section 2A.3, 2B.3, 2C.2, or 2D.2 or the acceptance or
purchase by Canadian Revolver Lenders of Bankers' Acceptances issued by
Canadian Revolver Borrower under Section 2B.8.
"Commitment" means the sum of (a) the Canadian Revolver Commitment,
plus (b) the US Commitment, plus (c) the outstanding principal balance of
the Term Notes, plus (d) the outstanding principal balance of the Term-B
Notes, in each case as of the time of determination.
"Continue", "Continuation" and "Continued" shall refer to (i) the
continuation pursuant to Section 2A.3, 2C.2, or 2D.2 hereof of a LIBOR Loan
as a LIBOR Loan from one Interest Period to the next Interest Period and
(ii) a rollover of a Banker's Acceptance at maturity.
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"Continuation/Conversion Notice" means a written or telephonic
request, or a written confirmation, made by a Borrower which meets the
requirements of Section 2A.3, 2B.3, 2C.2, or 2D.2.
"Convert, "Conversion" and "Convert" refers to (i) a conversion
pursuant to Section 2A.3 of one Type of US Loan into another Type of US
Loan, (ii) a conversion pursuant to Section 2B.3 of one Type of Canadian
Revolver Advance into another Type of Canadian Revolver Advance, (iii) a
conversion pursuant to Section 2C.2 of one Type of Term Loan into another
Type of Term Loan, and (iv) a conversion pursuant to Section 2D.2 of one
Type of Term-B Loan into another Type of Term-B Loan.
"Default Rate" means, at the time in question, two percent (2%) per
annum plus:
(a) the US LIBOR Rate plus (i) the US LIBOR Rate Margin then in effect
for each US LIBOR Loan (up to the end of the applicable Interest Period),
(ii) the Term LIBOR Rate Margin then in effect for each Term LIBOR Loan (up
to the end of the applicable Interest Period), or (iii) the Term-B LIBOR
Rate Margin then in effect for each Term-B LIBOR Loan (up to the end of the
applicable Interest Period),
(b) the US Base Rate plus (i) the US Base Rate Margin then in effect
for each US Base Rate Loan, (ii) the Term Base Rate Margin then in effect
for each Term Base Rate Loan, or (iii) the Term-B Base Rate Margin then in
effect for each Term-B Base Rate Loan, or
(c) the Canadian Revolver Prime Rate plus the Canadian Revolver Prime
Rate Margin for each Canadian Revolver Prime Rate Loan;
provided, however, the Default Rate shall never exceed the Highest Lawful
Rate.
"Guarantors" means Plains MLP and all of its Subsidiaries, other than
3794865 Canada Ltd. (including All American but excluding US Borrower with
respect to the US Commitment and the Term-B Loan, Term Borrower with
respect to the Term Loan, and Canadian Revolver Borrower with respect to
the Canadian Obligations) 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.
"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, three, six or twelve months (if twelve months is available for
each Lender) thereafter, as US Borrower, Term Borrower, or Canadian
Revolver 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
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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 for (i) a US Loan that would end after the US Maturity
Date, (ii) a Term Loan that would end after the Term Loan Maturity Date, or
(iii) a Term-B Loan that would end after the Term-B Loan Maturity Date.
"Lender Commitment" means, with respect to a Lender, the sum of (a)
the greater of (i) such Lender's Canadian Revolver Commitment, and (ii)
such Lender's portion of the Canadian Facility Usage, plus (b) the greater
of (i) such Lender's US Commitment and (ii) such Lender's US Facility
Usage, plus (c) the outstanding principal balance of such Lender's Term
Note, plus (d) the outstanding principal balance of such Lender's Term-B
Note, in each case as of the time of determination.
"Lenders" means, collectively, the US Lenders, the Term Lenders, the
Term-B Lenders, and the Canadian Revolver Lenders.
"Loans" means, collectively, the Term Loans, the Canadian Revolver
Advances, the US Loans, and the Term-B Loans.
"Notes" means, collectively, the Term Notes, the Term-B Notes, the
Canadian Revolver Notes, and the US Notes.
"Percentage Share" means:
(a) with respect to US Loans and US Lenders, the percentage shown
as each US Lender's "US Percentage Share" on the Lender Schedule,
(b) with respect to Term Loans and Term Lenders, the percentage
shown as each Term Lender's "Term Percentage Share" on the Lender
Schedule,
(c) with respect to Term-B Loans and Term-B Lenders, the
percentage shown as each Term-B Lender's "Term-B Percentage Share" on
the Lender Schedule, and
(d) with respect to Canadian Revolver Advances and Canadian
Revolver Lenders, the percentage shown as each Canadian Revolver
Lender's "Canadian Revolver Percentage Share" on the Lender Schedule.
"Permitted Investments" means:
(a) Cash Equivalents,
(b) Investments described in the Disclosure Schedule,
(c) Investments by Plains MLP or any of its Subsidiaries in any Wholly
Owned Subsidiary of Plains MLP which is a 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), and
(e) Permitted Acquisitions.
"Type" means, with respect to any Loans, the characterization of such
Loans as US Base Rate Loans, Term Base Rate Loans, Term-B Base Rate Loans,
Canadian Revolver Prime Rate Loans, US LIBOR Loans, Term LIBOR Loans, Term-
B LIBOR Loans or BAs.
"US Base Rate Loan" means a US Loan which does not bear interest at a
rate based upon the US LIBOR Rate.
"US Commitment" means (a) prior to the date on which Term-B Lenders
make the Term-B Loans, $500,000,000, and (b) on and after the date on which
Term-B Lenders make the Term-B Loans, an amount equal to (i) $500,000,000,
minus (ii) twenty-five percent (25%) of the original aggregate amount of
such Term-B Loans. Each US Lender's US Commitment shall be the amount set
forth on the Lender Schedule.
"US LIBOR Rate" means, as applicable to any US LIBOR Loan, Term LIBOR
Loan or Term-B 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 1/100 of 1%) as determined on the basis of
offered rates for deposits in 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 US LIBOR Loan, Term LIBOR Loan or Term-B
LIBOR Loan; provided, however, if the rate described above does not appear
on the Telerate system on any applicable interest determination date, the
US 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 "LIBOR" (or such other page as may
replace the LIBOR 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 LIBOR 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 US LIBOR Rate for that date
will be determined on the basis of the offered rates for deposits in
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 US LIBOR Loan, Term LIBOR Loan or Term-B 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 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 Dollars to leading European banks for a period of time comparable
to
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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 US LIBOR Loan, Term LIBOR
Loan or Term-B LIBOR Loan. In the event that Administrative Agent is unable
to obtain any such quotation as provided above, it will be deemed that the
US LIBOR Rate pursuant to such US LIBOR Loan, Term LIBOR Loan or Term-B
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 US 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 US LIBOR Rate is to be
determined, or (b) any category of extensions of credit or other assets
which include US LIBOR Loans, Term LIBOR Loans or Term-B LIBOR Loans. The
US LIBOR Rate for any US LIBOR Loan, Term LIBOR Loan or Term-B LIBOR Loan
shall change whenever the Reserve Percentage changes.
"US Obligations" means all Liabilities from time to time owing by any
Restricted Person to any Lender Party under or pursuant to any of the US
Notes, including all US LC Obligations owing thereunder, the Term Notes, or
the Term-B Notes, or under or pursuant to any guaranty of the obligations
of US Borrower or Term Borrower under the Loan Documents, or under or
pursuant to any Security Document which secures the payment and performance
of such Liabilities. "US Obligation" means any part of the US Obligations.
(c) The following definitions are hereby added to Section 1.1 of the
Original Agreement in appropriate alphabetical order:
"Term-B Base Rate Loan" means a Term-B Loan which does not bear
interest at a rate based upon the US LIBOR Rate.
"Term-B Base Rate Margin" means, on any day, the percent per annum set
forth on the Pricing Grid as the "Term-B Base Rate Margin" based on the
Applicable Leverage Level in effect on such date. Changes in the
applicable Term-B Base Rate Margin will occur automatically without prior
notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to US Borrower and Term-B Lenders of
changes in the Term-B Base Rate Margin.
"Term-B Lenders" means each signatory hereto designated as a Term-B
Lender, and the successors and each permitted assign of each such party as
holder of a Term-B Note.
"Term-B LIBOR Loan" means a Term-B Loan that bears interest at a rate
based upon the US LIBOR Rate.
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"Term-B LIBOR Rate Margin" means, on any day, the percent per annum
set forth on the Pricing Grid as the "Term-B LIBOR Rate Margin" based on
the Applicable Leverage Level in effect on such date. Changes in the
applicable Term-B LIBOR Rate Margin will occur automatically without prior
notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to US Borrower and Term-B Lenders of
changes in the Term-B LIBOR Rate Margin.
"Term-B Loan" has the meaning given such term in Section 2D.1 hereof.
"Term-B Loan Maturity Date" means September 21, 2007.
"Term-B Notes" has the meaning given such term in Section 2D.1
hereof.
(S) 2.2. Article IID. The Original Agreement is hereby amended by adding
thereto the following Article IID:
ARTICLE IID - Term-B Loans
Section 2D.1. Term-B Loans. Subject to the terms and
conditions hereof, each Term-B Lender agrees to make one (1) advance to US
Borrower (herein called such Lender's "Term-B Loan") upon US Borrower's
request on or before September 30, 2001, provided that (a) such Term-B Loan
by each Term-B Lender does not exceed such Term-B Lender's Term-B Loan
amount set forth on the Lender Schedule and (b) the aggregate amount of all
Term-B Loans does not exceed $250,000,000. Portions of each Term-B Lender's
Term-B Loan may from time to time be designated as a Term-B Base Rate Loan
or Term-B LIBOR Loan as provided herein. The obligation of US Borrower to
repay to each Term-B Lender the amount of the Term-B Loan made by such
Term-B Lender to US Borrower, together with interest accruing in connection
therewith, shall be evidenced by a single promissory note (herein called
such Term-B Lender's "Term-B Note") made by US Borrower payable to the
order of such Term-B Lender in the form of Exhibit A-4 with appropriate
insertions. The amount of principal owing on any Term-B Lender's Term-B
Note at any given time shall be the amount of such Term-B Lender's Term-B
Loan minus all payments of principal theretofore received by such Term-B
Lender on such Term-B Note. Interest on each Term-B Note shall accrue and
be due and payable as provided herein and therein. Each Term-B Note shall
be due and payable as provided herein and therein, and shall be due and
payable in full on the Term-B Loan Maturity Date. No portion of any Term-B
Loan which has been repaid may be reborrowed. US Borrower may have no more
than three Borrowings of Term-B LIBOR Loans outstanding at any time. All
payments of principal and interest on the Term-B Loans shall be made in
Dollars. All Term-B Loans shall be advanced to US Borrower in Dollars.
Section 2D.2. Continuations and Conversions of Existing
Term-B Loans. US Borrower may make the following elections with respect to
outstanding Term-B Loans (1) to Convert, in whole or part, any Type of
Term-B Loan to any other Type of Term-B Loan, provided that any such
Conversion of any Term-B LIBOR Loan must be made on the last day of the
Interest Period applicable thereto; and (2) to Continue, in whole or in
part, Term-B 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
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elections, US Borrower may combine existing Term-B Loans made pursuant
to separate Borrowings into one new Borrowing or divide existing Term-B
Loans made pursuant to one Borrowing into separate new Borrowings, provided
that US Borrower may have no more than three Borrowings of Term-B LIBOR
Loans outstanding at any time. To make any such election, US Borrower must
give to Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of any such Conversion or Continuation of existing
Term-B 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 Term-B Loans which are to be Continued or
Converted;
(b) specify (i) the aggregate amount of any Borrowing of Term-B Base
Rate Loans into which such existing Term-B 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 Term-B LIBOR Loans
into which such existing Term-B 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 Term-B 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 Term-B Base Rate Loans is to occur, or (ii) the third
Business Day preceding the day on which any such Continuation or Conversion
to Term-B 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-4, duly completed. Each such telephonic request shall be deemed
a representation, warranty, acknowledgment and agreement by US 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 Term-B Lender prompt notice of the
terms thereof. Each Continuation/Conversion Notice shall be irrevocable
and binding on US Borrower. During the continuance of any Default, US
Borrower may not make any election to Convert existing Term-B Loans into
LIBOR Loans or Continue existing LIBOR Loans made under this Agreement as
LIBOR Loans beyond the last day of the respective and corresponding
Interest Period. If (due to the existence of a Default or for any other
reason) US 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 Term-B Base
Rate Loans at the end of such Interest Period. No new funds shall be
repaid by US Borrower or advanced by any Term-B Lender in connection with
any Continuation or Conversion of existing Term-B 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 terms of already outstanding Term-B Loans and the
interest rate applicable thereto.
Section 2D.3. Repayments.
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(a) Scheduled Repayments of Principal. US Borrower shall repay the
principal of the Term-B Loans as follows: (i) a principal payment in an
amount equal to one percent of the original principal amount of the Term-B
Loans shall be due and payable on September 21 of each year, commencing
September 21, 2002, and (ii) the outstanding principal balance shall be due
on the Term-B Loan Maturity Date.
(b) Interest Rates. Each Term-B Loan shall bear interest as follows:
(i) unless the Default Rate shall apply, (A) each Term-B Base Rate Loan
shall bear interest on each day outstanding at the US Base Rate plus the
Term-B Base Rate Margin in effect on such day, and (B) each Term-B LIBOR
Loan shall bear interest on each day during the related Interest Period at
the related US LIBOR Rate plus the Term-B LIBOR Rate Margin in effect on
such day, and (ii) during a Default Rate Period, all Term-B 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 US Borrower, based upon Section 8.1(i)(i), (i)(ii) or (i)(iii)
exists and the Term-B 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 US Base Rate, the US LIBOR Rate, Term-B Base
Rate Margin, or the Term-B LIBOR Rate Margin changes. In no event shall
the interest rate on any Term-B Loan exceed the Highest Lawful Rate.
(c) Optional Prepayments. US Borrower may, upon three Business Days'
notice, as to Term-B LIBOR Loans, or one Business Day's notice, as to Term-
B Base Rate Loans, to Administrative Agent (and Administrative Agent will
promptly give notice to the other Term-B Lenders) from time to time and
without premium or penalty prepay the Term-B Loans, in whole or in part, so
long as the aggregate amounts of all partial prepayments of principal on
the Term-B Loans equals $5,000,000 or any higher integral multiple of
$1,000,000. Each prepayment of principal of a Term-B LIBOR Loan under this
subsection shall be accompanied by all interest then accrued and unpaid on
the principal so prepaid. Any principal or interest prepaid pursuant to
this subsection 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 2D.4. Use of Proceeds. US Borrower shall use all Term-B
Loans to provide working capital for operations and for other general
business purposes, including acquisitions and refinancing Obligations, but
not to pay distributions to partners of Restricted Persons. In no event
shall the funds from any Term-B Loan be used directly or indirectly by any
Person for personal, family, household or agricultural purposes or 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 to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock. US Borrower
represents and warrants that it is not engaged principally, or as one of
its important activities, in the business of extending credit to others for
the purpose of purchasing or carrying such margin stock.
(S) 2.3. General Payment Procedures. Administrative Agent hereby agrees
with each Lender that it shall distribute and apply money pursuant to Section
3.1(b) and (c) and Section 3.9 promptly.
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(S) 2.4. Indebtedness. Clause (5) of Section 7.1(g) of the Original
Agreement is hereby amended in its entirety to read as follows:
(5) upon the receipt of net proceeds from the original issuance of such
Indebtedness, the US Commitment shall be reduced by an amount (the
"Commitment Reduction Amount") equal to (A) forty percent (40%) of the face
amount of such Indebtedness, if the aggregate face amount is less than
$350,000,000, or (B) fifty percent (50%) of the face amount of such
Indebtedness, if 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 twenty-five percent (25%) of
the aggregate original principal amount of the Term-B Loans;
(S) 2.5. Debt to Capital Ratio. Section 7.14 of the Original Agreement is
hereby amended in its entirety to read as follows:
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 December 31, 2002, 0.70 to 1.0 at any time; and
(ii) from and after December 31, 2002, 0.65 to 1.0 at any
time.
(S) 2.6. Open Position. The reference to "$5,000,000" set forth in Section
7.15(a)(iii) of the Original Agreement is hereby amended to refer instead to
"$12,500,000".
(S) 2.7. Assignments and Pledges by Term Lenders and Term-B Lenders. The
reference to "Affiliate" in the first sentence of Section 10.(c) is hereby
amended to refer instead to "affiliate".
The last sentence of Section 10.5(c)(i) of the Original Agreement is hereby
amended in its entirety to read as follows:
In the case of an assignment by a Term Lender or Term-B Lender of less than
all of its respective Term Loan or Term-B Loan, after such assignment is
made, the Term Loan Percentage Share of each of the assignee Term Lender
and the assignor Term Lender shall equal or exceed 1% or the Term-B Loan
Percentage Share of each of the assignee Term-B Lender and the assignee
Term-B Lender shall equal or exceed 0.5% (provided that such minimum Term
Loan Percentage Share or Term-B Loan Percentage Share shall not be required
in connection with any assignment by any Lender to any fund that invests in
loans and is managed by such Lender, any affiliate of such Lender, the same
fund manager, or any affiliate of the same fund manager).
The proviso set forth in the first sentence of Section 10.5(c)(ii) of the
Original Agreement is hereby amended in its entirety to read as follows:
provided, no such processing fee shall be payable in connection with any
assignment of any Term Loan or Term-B Loan (or portion thereof) by a Lender
to any fund that invests in loans and is managed by such Lender, any
affiliate of such Lender, the same fund manager, or any affiliate of the
same fund manager.
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Section 10.5(d) of the Original Agreement is hereby amended by adding a new
sentence at the end thereof, to read as follows:
In addition, any Term Lender or Term-B Lender may at any time, without
consent of US Borrower, Term Borrower or Administrative Agent, pledge all
or any portion of its Term Loan or Term-B Loan, as the case may be, to any
trustee or holder (or other representative of such holder) (for purpose of
this Section 10.5(d), each such trustee, holder or representative is
referred to as a "pledgee") of obligations owed, or debt securities issued
by, such Term Lender or Term-B Lender, as security for such obligations or
debt securities; provided that (i) the agreement between such Lender and
such pledgee at all times provides that such pledge does not give such
pledgee any right to vote as a Lender or any other direct claims or rights
against any Person other than such pledging Term Lender or Term-B Lender,
as applicable, and imposes no obligations on the part of any of US
Borrower, Term Borrower or Administrative Agent, (ii) no such pledge (or
enforcement thereof) shall release any such pledging Term Lender or Term-B
Lender from its obligations under any of the Loan Documents or permit or
authorize any Person to become a Lender unless it has complied with Section
10.5(c), and (iii) all related costs, fees and expenses in connection with
any such pledge shall be for the sole account of such pledging Term Lender
or Term-B Lender.
The reference to "subject to the following additional conditions:" set
forth in the first sentence of Section 10.5(g) is amended to refer instead to
"subject to the following additional conditions (x), (y) and (z), with respect
to assignments pursuant to clause (i) above, and subject to the following
additional conditions (y) and (z) with respect to assignments pursuant to clause
(ii) above:".
(S) 2.8. Exhibits and Schedules.
(a) The Lender Schedule attached as Schedule 1 to the Original Agreement is
hereby replaced in its entirety with Schedule 1 attached hereto.
(b) The Pricing Grid attached as Schedule 5 to the Original Agreement is
hereby replaced in its entirety with Schedule 5 attached hereto.
(c) The Original Agreement is hereby amended by adding thereto the form of
Term Note and form of Term-B Continuation/Conversion Notice attached as Exhibits
A-4 and B-3 attached hereto.
(S) 2.9. US Commitment Reduction. Upon the making of the Term-B Loans, the
US Commitment shall be permanently reduced by an amount equal to twenty-five
percent (25%) of the original aggregate amount of such Term-B Loans.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Amendment Effective Date. This Amendment shall become effective as
of the date first written above, when and only when
11
(i) Administrative Agent shall have received, at Administrative
Agent's office (A) a counterpart of this Amendment executed and delivered
by US Borrower, Term Borrower, Canadian Revolver Borrower, Plains MLP, All
American and Majority Lenders which are parties to the Original Agreement,
and consented to by each Guarantor, (B) a contemporaneous amendment to the
Marketing Credit Agreement, amending (I) certain restrictions on the
incurrence of Indebtedness by Restricted Persons so as to permit the Term-B
Loans, (II) certain financial covenants on the same terms and conditions
set forth herein, and (III) various other provisions therein consistent
with the amendments set forth herein, in form and substance acceptable to
Administrative Agent, executed and delivered by such Persons so as to make
such amendment effective;
(ii) (A) In consideration hereof, US Borrower shall have paid to
Administrative Agent for the account of each Lender, other than Term-B
Lenders, executing and delivering this Amendment an amendment fee in
immediately available funds equal to one-twentieth of one percent (0.05%)
of each such Lender's Commitment; provided, with respect to any such
Lender's US Commitment, such fee shall be based upon the US Commitment as
reduced pursuant to Section 2.8 hereof, and (B) US Borrower shall have paid
all other fees required to be paid to Administrative Agent or any Lender
pursuant to any Loan Documents, including fees and expenses of ▇▇▇▇▇▇▇▇ &
Knight LLP, counsel to Administrative Agent; and
(iii) Administrative Agent shall have additionally received all of
the following documents, each document (unless otherwise indicated) being
dated the date of receipt thereof by Administrative Agent, duly authorized,
executed and delivered, and in form and substance satisfactory to
Administrative Agent:
(A) Officer's Certificate. A certificate of a duly authorized
officer of General Partner, to the effect that all of the
representations and warranties set forth in Article IV hereof are true
and correct at and as of the date thereof, and
(B) Supporting Documents. Such supporting documents as
Administrative Agent may reasonably request.
Section 3.2. Term-B Loans; Documents to be Delivered. No Term-B Lender
shall have any obligation to make its Term-B Loan, 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:
(a) This Amendment executed and delivered by Term-B Lenders.
(b) Each Term-B Note.
(c) Amendments to each Mortgage listed on the Security Schedule, and
such other amendments to the Security Documents as Administrative Agent may
request Restricted Persons to deliver relating thereto.
(d) Certain certificates including:
12
(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: 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, 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 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 the general partner of US Borrower and All American,
regarding satisfaction of Section 4.2 of the Credit Agreement and a
certificate of the chief financial officer of the general partner of
General Partner reflecting pro forma compliance with each event
specified in Sections 7.11 through 7.14, inclusive;
(iii) A solvency certificate from each of US Borrower, Term
Borrower, and Canadian Revolver Borrower and each Guarantor, with
attached pro forma balance sheet for such Person giving effect to the
Term-B Loans.
(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.
(g) A favorable opinion of ▇▇▇ ▇▇▇▇▇, Esq., General Counsel for
Restricted Persons, substantially in the form set forth in Exhibit E-1,
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., special Texas and New York counsel to
Restricted Persons, substantially in the form set forth in Exhibit E-2,
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Canadian Counsel for Restricted Persons,
substantially in the form set forth in Exhibit E-3, and local counsel for
the state of California satisfactory to Administrative Agent.
(h) 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.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrowers. In
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrowers represent and warrant to Administrative Agent and each
Lender that:
13
(a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that such representation and
warranty was made as of a specific date.
(b) Each Restricted Person is duly authorized to execute and deliver
this Amendment and each other Amendment Document, to the extent a party
thereto, and each Borrower is and will continue to be duly authorized to
borrow and perform its obligations under the Credit Agreement. Each
Restricted Person has duly taken all action necessary to authorize the
execution and delivery of this Amendment and each other Amendment Document,
to the extent a party thereto, and to authorize the performance of their
respective obligations hereunder.
(c) The execution and delivery by each Restricted Person of this
Amendment and each other Amendment Document, to the extent a party thereto,
the performance by each Restricted Person of its respective obligations
hereunder and thereunder, and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with any
provision of any Law or of the organizational documents of any Restricted
Person, or of any material agreement, judgment, license, order or permit
applicable to or binding upon any Restricted Person, or result in the
creation of any Lien upon any assets or properties of any Restricted
Person, except in favor of Administrative Agent or Canadian Agent for the
benefit of Lenders and other Permitted Liens. Except for those which have
been duly obtained, no consent, approval, authorization or order of any
Tribunal or third party is required in connection with the execution and
delivery by any Restricted Person of this Amendment or any other Amendment
Document, or to consummate the transactions contemplated hereby and
thereby.
(d) When duly executed and delivered, each of this Amendment and each
other Amendment Document, and each of the Loan Documents, as amended hereby
and thereby, will be a legal and binding instrument and agreement of each
Restricted Person to the extent a party thereto, enforceable in accordance
with its terms, (subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency and similar laws applicable to creditors' rights
generally).
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents
(including but not limited to each Guaranty), as they may be amended or affected
by this Amendment or any other Amendment Document, are hereby ratified and
confirmed in all respects by each Restricted Person to the extent a party
thereto. Any reference to the Credit Agreement in any Loan Document shall be
deemed to refer to this Amendment also. The execution, delivery and
effectiveness of this Amendment and the other Amendment Documents shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of Administrative Agent, Canadian Agent or any Lender under the Credit
Agreement or any other Loan Document nor constitute a waiver of any provision of
the Credit Agreement or any other Loan Document.
(S) 5.2. Ratification of Security Documents. Restricted Persons,
Administrative Agent, and Lenders each acknowledge and agree that any and all
indebtedness, liabilities or obligations, including without limitation the Term-
B Loans, arising under or in connection with the LC
14
Obligations or the Notes, including without limitation the Term-B Notes, are
Obligations and are secured indebtedness under, are guarantied by, and are
secured by, each and every Security Document to which any Restricted Person is a
party. Each Restricted Person hereby re-pledges, re-grants and re-assigns a
security interest in and lien on every asset of the such Restricted Person
described as Collateral in any Security Document and re-guarantees all
Obligations under the Credit Agreement.
(S) 5.3. Ratification of Intercreditor Agreement. Each Lender hereby
acknowledges and confirms that all Obligations under the Credit Agreement, as
amended hereby, and the "Obligations" under the Marketing Credit Agreement, as
amended on the date hereof, shall be and shall remain subject to the terms and
entitled to the benefits of the Intercreditor Agreement.
(S) 5.4. Survival of Agreements. All representations, warranties,
covenants and agreements of the Restricted Persons herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making or granting of each Loan, and shall further
survive until all of the Obligations under the Credit Agreement are paid in
full. All statements and agreements contained in any certificate or instrument
delivered by any Restricted Person hereunder or under the Credit Agreement to
Administrative Agent, Canadian Agent or any Lender shall be deemed to constitute
representations and warranties by, or agreements and covenants of, such
Restricted Person under this Amendment and under the Credit Agreement.
(S) 5.5. Loan Documents. This Amendment and each other Amendment
Document is a Loan Document, and all provisions in the Credit Agreement
pertaining to Loan Documents apply hereto.
(S) 5.6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING
CONSTRUCTION, VALIDITY AND PERFORMANCE.
(S) 5.7. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
15
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
US BORROWER: PLAINS MARKETING, L.P.
By: Plains Marketing GP Inc., General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
GUARANTORS: ALL AMERICAN PIPELINE, L.P.
By: Plains Marketing GP Inc., General Partner
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: Plains AAP, L.P., General Partner
By: Plains All American LLC, General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
CANADIAN REVOLVER
BORROWER: PLAINS MARKETING CANADA, L.P.,
By: PMC (Nova Scotia) Company,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice Pres.
TERM BORROWER: PMC (NOVA SCOTIA) COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice Pres.
16
LENDER PARTIES: FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and Lender
By:
--------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
FIRST UNION NATIONAL BANK, Lender
By:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. Vice Pres.
BANK OF AMERICA, N.A., Lender
By:
--------------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO),
Lender
By:
--------------------------------------
Name:
Title:
FORTIS CAPITAL CORP., Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, Lender
By:
--------------------------------------
Name:
Title:
BANK OF SCOTLAND, Lender
By:
--------------------------------------
Name:
Title:
17
▇▇▇▇▇ FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By:
--------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, Lender
By:
--------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ, Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC., Lender
By:
--------------------------------------
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., Lender
By:
--------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., Lender
By:
--------------------------------------
Name:
Title:
18
COMERICA BANK-TEXAS, Lender
By:
--------------------------------------
Name:
Title:
BNP PARIBAS, Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ FINANCIAL, INC., Lender
By:
--------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
Canadian Administration Agent
By:
--------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK, Lender
By:
--------------------------------------
Name:
Title:
BANK OF AMERICA CANADA, Lender
By:
--------------------------------------
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇), Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ FINANCIAL CANADA, LTD., Lender
By:
--------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
PILGRIM SENIOR INCOME FUND
ML CLO XX PILGRIM AMERICA (CAYMAN)
LTD.
PILGRIM CLO 1999 - 1 LTD.
SEQUILS - PILGRIM I, LTD.
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
ML CLO XII PILGRIM AMERICA (CAYMAN)
LTD., each a Lender
By: ING Pilgrim Investments, LLC,
as its investment manager
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME
INCOME TRUST, Lender
By:
--------------------------------------
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇-▇, ▇▇▇▇▇▇
By: Flagship Capital Management, Inc.
By:
--------------------------------------
Title:
FLAGSHIP CLO II, Lender
By:
--------------------------------------
Title:
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
NEMEAN CLO, LTD., each a Lender
By: ING Capital Advisors LLC,
as Investment Manager
By:
--------------------------------------
Title:
ALLSTATE LIFE INSURANCE COMPANY
AIMCO CDO SERIES 2000-A, each a Lender
By:
--------------------------------------
Name:
By:
--------------------------------------
Name:
Its Authorized Signatories
TYLER TRADING, INC., Lender
By:
--------------------------------------
Name:
Title:
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR FLOATING RATE HIGH INCOME FUND VARIABLE
INSURANCE PRODUCTS FUND II:
ASSET MANAGER PORTFOLIO, each a Lender
By:
--------------------------------------
Title:
21
▇▇▇▇▇ CLO LTD. 2000-I
ELC (CAYMAN) LTD. 1999-II
APEX (IDM) CDO I, LTD., each a Lender
By:
--------------------------------------
Title:
EMERALD ORCHARD LIMITED, Lender
By:
--------------------------------------
Name:
Title:
22
TERM-B LENDERS: FLEET NATIONAL BANK, Term-B Lender
By:
--------------------------------------
Name:
Title:
KZH ING-1 LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
KZH ING-3 LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD. NEW YORK BRANCH
By:
--------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------------
Name:
Title:
23
KZH CNC LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
KZH WATERSIDE LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
KZH PONDVIEW LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
24
KZH HIGHLAND-2 LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
KZH PAMCO LLC, Term-B Lender
By:
--------------------------------------
Name:
Title:
25
CONSENT AND AGREEMENT
The undersigned hereby consents to the provisions of this Amendment and the
transactions contemplated herein and hereby (i) acknowledges and agrees that any
and all indebtedness, liabilities or obligations, including without limitation
the Term-B Loans, arising under or in connection with the Notes, including
without limitation the Term-B Notes, are Obligations and are secured
indebtedness under, and are secured by, each and every Security Document to
which it is a party, (ii) re-pledges, re-grants and re-assigns a security
interest in and lien on all of its assets described as collateral in any
Security Document, (iii) ratifies and confirms its Guaranty dated May 4, 2001
made by it for the benefit of Administrative Agent and Lenders, and (iv)
expressly acknowledges and agrees that the undersigned guarantees all
indebtedness, liabilities and obligations, including without limitation the
Term-B Loans, arising under or in connection with any and all Notes, including
without limitation the Term-B Notes, pursuant to the terms of such Guaranty, and
agrees that its obligations and covenants thereunder are unimpaired hereby and
shall remain in full force and effect.
PLAINS MARKETING CANADA LLC
By: Plains Marketing, L.P., its sole member
By: Plains Marketing GP Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President