EXHIBIT 10.21
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
the 19th day of August, 1999, by and among PLAINS ▇▇▇▇▇▇▇▇ PERMIAN, L.P.
("Borrower") and BANKBOSTON, N.A., as Administrative Agent (in such capacity,
"Administrative Agent"), and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, Borrower, Administrative Agent, and Lenders entered into that
certain Credit Agreement dated as of May 12, 1999 (as amended, restated, or
supplemented to the date hereof, the "Original Agreement") for the purposes and
consideration therein expressed, pursuant to which Lenders became obligated to
make and made loans to Borrower as therein provided; and
WHEREAS, Borrower, Administrative Agent, and the Lenders party hereto
desire to amend the Original Agreement for the purposes described herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(S) 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this Second Amendment to Credit Agreement.
"Credit Agreement" means the Original Agreement as amended hereby.
ARTICLE II. -- Amendment and Waiver
(S) 2.1. Interest Rate Hedging Agreements. Section 6.18 of the Original
Agreement is hereby amended to read in its entirety as follows:
"Section 6.18. Interest Rate Hedging Agreements Borrower shall
at all times maintain interest rate Hedging Contracts which are: (a)
for combined durations as of any day of not less than 12 months
following such time, (b) in combined notional amounts not less than
seventy percent (70%) of the outstanding
principal balance of the Term Loans, (c) in compliance with Section
7.3, and (d) otherwise on terms acceptable to Administrative Agent in
its sole discretion."
(S) 2.2. Waiver. Administrative Agent and each other Lender Party hereby
waives the (i) failure by Restricted Persons to comply with Section 6.18 of the
Original Agreement prior to the date hereof and (ii) the related Defaults and
Events of Default arising under Section 8.1(e) of the Original Agreement.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of the
date first above written when and only when Administrative Agent shall have
received, at Administrative Agent's office (i) a counterpart of this Amendment
executed and delivered by Restricted Persons and Majority Lenders and (ii) 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 time of such effectiveness.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties. In order to induce
Administrative Agent and Lenders to enter into this Amendment, Borrower and
General Partner represent and warrant to Administrative Agent and each Lender
that:
(a) The representations and warranties contained in Article V of the
Original Agreement, are true and correct at and as of the time of the
effectiveness hereof 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 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 to authorize the performance
of its respective obligations hereunder.
(c) The execution and delivery by each Restricted Person of this
Amendment, the performance by each Restricted Person of its respective
obligations hereunder, and the consummation of the transactions
contemplated hereby, do not and will not conflict with any provision of
law, statute, rule or regulation or of the constituent 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, charge or encumbrance upon any assets or
properties of any Restricted Person, except in favor of Administrative
Agent for the benefit of Lenders. Except for those which have been duly
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by any Restricted Person of this Amendment, to the
extent a party thereto, or to consummate the transactions contemplated
hereby.
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(d) When this Amendment has been duly executed and delivered, each of
the Loan Documents, as amended by this Amendment, will be a legal and
binding instrument and agreement of each Restricted Person, to the extent a
party thereto, enforceable in accordance with its terms, (subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency and similar
laws applicable to creditors' rights generally and to general principles of
equity).
(e) The Initial Financial Statements fairly present the Consolidated
financial position at such date and the Consolidated statement of
operations and the changes in financial position for the period ending on
such date for Restricted Persons. Copies of such financial statements have
heretofore been delivered to Lenders. Since July 15, 1999, no Material
Adverse Change has occurred in the Consolidated financial condition or
businesses of Restricted Persons.
(f) No Default exists on the date hereof.
(g) Each Restricted Person has performed and complied with all
agreements and conditions required in the Loan Documents to be performed or
complied with by it on or prior to the date hereof.
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents,
as they may be amended or affected by this Amendment, are hereby ratified and
confirmed in all respects. Any reference to the Credit Agreement in any Loan
Document shall be deemed to refer to this Amendment also. The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under the Credit Agreement or any other Loan
Document nor constitute a waiver of any provision of the Credit Agreement or any
other Loan Document.
(S) 5.2. 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 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 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) 5.3. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto and
thereto.
(S) 5.4. GOVERNING LAW. THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS
SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY AND
PERFORMANCE.
(S) 5.5. 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.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS ▇▇▇▇▇▇▇▇ PERMIAN, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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BANKBOSTON, N.A.,
Administrative Agent, LC Issuer and Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Director
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FIRST UNION NATIONAL BANK, as
Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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BANK ONE, TEXAS, N.A., as Documentation
Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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PILGRIM PRIME RATE TRUST
SEQUILS PILGRIM I LTD.
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: PILGRIM INVESTMENTS, INC., as
investment manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME
TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR PRIME RATE PORTFOLIO,
INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT, L.P.,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND II,
INC.
DEBT STRATEGIES FUND II, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
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ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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CONSENT AND ACKNOWLEDGMENT
Each of the undersigned hereby consents to the provisions of this Amendment
and the transactions contemplated herein, and hereby ratifies and confirms its
respective Guaranty dated as of May 12, 1999, made by it for the benefit of
Administrative Agent, and agrees that its obligations and covenants thereunder
are unimpaired hereby and shall remain in full force and effect.
Date: August 19, 1999
▇▇▇▇▇▇▇▇ PERMIAN LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇▇ PERMIAN PIPE LINE LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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