================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
[Revolving Credit Facility]
_______________________________________________________
PLAINS MARKETING, L.P., as US Borrower,
ALL AMERICAN PIPELINE, L.P. and PLAINS ALL AMERICAN PIPELINE, L.P., as
Guarantors,
FLEET NATIONAL BANK, as Administrative Agent,
FLEET SECURITIES, INC., as Lead Arranger and Book Manager,
FIRST UNION NATIONAL BANK, as Syndication Agent,
BANK OF AMERICA, N.A., as Documentation Agent,
BANK ONE, NA (MAIN OFFICE CHICAGO) and FORTIS CAPITAL CORP.,
as Senior Managing Agents,
and CERTAIN FINANCIAL INSTITUTIONS, as US Lenders
$500,000,000 Revolving Credit Facility
________________________________________________
PMC (NOVA SCOTIA) COMPANY, as Term Borrower,
ALL AMERICAN PIPELINE, L.P. and PLAINS ALL AMERICAN PIPELINE, L.P., as
Guarantors,
FLEET NATIONAL BANK, as Administrative Agent,
FLEET SECURITIES, INC., as Lead Arranger and Book Manager,
and CERTAIN FINANCIAL INSTITUTIONS, as Term Lenders
$100,000,000 Term Loan
________________________________________________
PLAINS MARKETING CANADA, L.P., as Canadian Revolver Borrower,
ALL AMERICAN PIPELINE, L.P. and PLAINS ALL AMERICAN PIPELINE, L.P., as
Guarantors,
FLEET NATIONAL BANK, as Administrative Agent,
FLEET SECURITIES, INC., as Lead Arranger and Book Manager,
THE TORONTO-DOMINION BANK, as Canadian Administration Agent,
and CERTAIN FINANCIAL INSTITUTIONS, as Canadian Revolver Lenders
$30,000,000 Canadian Revolving Credit Facility
_______________________________________________________
May 4, 2001
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I - Definitions and References............................................................... 1
Section 1.1. Defined Terms..................................................................... 1
Section 1.2. Exhibits and Schedules; Additional Definitions.................................... 29
Section 1.3. Amendment of Defined Instruments.................................................. 29
Section 1.4. References and Titles............................................................. 30
Section 1.5. Calculations and Determinations................................................... 30
ARTICLE IIA - The US Loans........................................................................... 30
Section 2A.1. Commitments to Lend; US Notes.................................................... 30
Section 2A.2. Requests for US Loans............................................................ 31
Section 2A.3. Continuations and Conversions of Existing US Loans............................... 32
Section 2A.4. Use of Proceeds.................................................................. 33
Section 2A.5. Interest Rates and Fees.......................................................... 34
Section 2A.6. Optional Prepayments............................................................. 34
Section 2A.7. Mandatory Prepayments............................................................ 35
Section 2A.8. US Letters of Credit............................................................. 36
Section 2A.9. Requesting US Letters of Credit.................................................. 36
Section 2A.10. Reimbursement and Participations................................................. 37
Section 2A.11. US Letter of Credit Fees......................................................... 38
Section 2A.12. No Duty to Inquire............................................................... 38
Section 2A.13. US LC Collateral................................................................. 39
Section 2A.14. Hedging Contracts................................................................ 41
ARTICLE IIB - The Canadian Revolver Advances and Canadian Letters of Credit.......................... 41
Section 2B.1. Canadian Revolver Advances....................................................... 41
Section 2B.2. Requests for New Canadian Revolver Advances...................................... 42
Section 2B.3. Continuations and Conversions of Existing Canadian Revolver Advances............. 43
Section 2B.4. Repayments of.................................................................... 44
Section 2B.5. Interest Rates and Fees.......................................................... 45
Section 2B.6. Use of Proceeds.................................................................. 46
Section 2B.7. Creation of Bankers' Acceptances................................................. 46
Section 2B.8. Terms of Acceptance by the Canadian Revolver Lenders............................. 47
Section 2B.9. General Procedures for Bankers' Acceptances...................................... 49
Section 2B.10. Execution of Bankers' Acceptances................................................ 50
Section 2B.11. Escrowed Funds................................................................... 50
Section 2B.12. Canadian Letters of Credit....................................................... 50
Section 2B.13. Requesting Canadian Letters of Credit............................................ 51
Section 2B.14. Reimbursement and Participations................................................. 52
Section 2B.15. Canadian Letter of Credit Fees................................................... 53
Section 2B.16. No Duty to Inquire............................................................... 54
Section 2B.17. Canadian LC Collateral........................................................... 55
Section 2B.18. Hedging Contracts............................................................... 56
ARTICLE IIC - Term Loans............................................................................. 56
Section 2C.1. Term Loans........................................................................ 56
Section 2C.2. Continuations and Conversions of Existing Term Loans.............................. 57
Section 2C.3. Repayments........................................................................ 58
Section 2C.4. Use of Proceeds................................................................... 59
Section 2C.5. Hedging Contracts................................................................. 59
ARTICLE III - Payments to Lenders.................................................................... 59
Section 3.1. General Procedures................................................................ 59
Section 3.2. Capital Reimbursement............................................................. 62
Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit................................ 62
Section 3.4. Notice; Change of Applicable Lending Office....................................... 63
Section 3.5. Availability...................................................................... 63
Section 3.6. Funding Losses.................................................................... 64
Section 3.7. Reimbursable Taxes................................................................ 64
Section 3.8. Replacement of Lenders............................................................ 66
ARTICLE IV - Conditions Precedent to Lending......................................................... 68
Section 4.1. Documents to be Delivered......................................................... 68
Section 4.2. Additional Conditions Precedent................................................... 70
ARTICLE V - Representations and Warranties........................................................... 71
Section 5.1. No Default........................................................................ 71
Section 5.2. Organization and Good Standing.................................................... 71
Section 5.3. Authorization..................................................................... 71
Section 5.4. No Conflicts or Consents.......................................................... 72
Section 5.5. Enforceable Obligations........................................................... 72
Section 5.6. Initial Financial Statements...................................................... 72
Section 5.7. Other Obligations and Restrictions................................................ 73
Section 5.8. Full Disclosure................................................................... 73
Section 5.9. Litigation........................................................................ 73
Section 5.10. Labor Disputes and Acts of God................................................... 73
Section 5.11. ERISA Plans and Liabilities...................................................... 73
Section 5.12. Compliance with Laws............................................................. 74
Section 5.13. Environmental Laws............................................................... 74
Section 5.14. Names and Places of Business..................................................... 76
Section 5.15. Borrower's Subsidiaries.......................................................... 76
Section 5.16. Title to Properties; Licenses.................................................... 77
Section 5.17. Government Regulation............................................................ 77
Section 5.18. Insider.......................................................................... 77
Section 5.19. Solvency......................................................................... 77
Section 5.20. Credit Arrangements.............................................................. 78
ii
ARTICLE VI - Affirmative Covenants................................................................... 78
Section 6.1. Payment and Performance........................................................... 78
Section 6.2. Books, Financial Statements and Reports........................................... 78
Section 6.3. Other Information and Inspections................................................. 81
Section 6.4. Notice of Material Events and Change of Address................................... 81
Section 6.5. Maintenance of Properties......................................................... 82
Section 6.6. Maintenance of Existence and Qualifications....................................... 82
Section 6.7. Payment of Trade Liabilities, Taxes, etc.......................................... 82
Section 6.8. Insurance......................................................................... 83
Section 6.9. Performance on Borrower's Behalf.................................................. 83
Section 6.10. Interest.......................................................................... 83
Section 6.11. Compliance with Agreements and Law................................................ 83
Section 6.12. Environmental Matters; Environmental Reviews...................................... 84
Section 6.13. Evidence of Compliance............................................................ 84
Section 6.14. Agreement to Deliver Security Documents........................................... 84
Section 6.15. Perfection and Protection of Security Interests and Liens......................... 84
Section 6.16. Bank Accounts; Offset............................................................. 85
Section 6.17. Guaranties of Subsidiaries........................................................ 85
Section 6.18. Compliance with Agreements........................................................ 85
Section 6.19. Rents............................................................................. 86
Section 6.20. Working Capital Borrowings........................................................ 86
Section 6.21. Canadian Revolver Advances........................................................ 86
ARTICLE VII - Negative Covenants..................................................................... 86
Section 7.1. Indebtedness...................................................................... 87
Section 7.2. Limitation on Liens............................................................... 88
Section 7.3. Hedging Contracts................................................................. 90
Section 7.4. Limitation on Mergers, Issuances of Securities.................................... 90
Section 7.5. Limitation on Sales of Property................................................... 91
Section 7.6. Limitation on Dividends and Redemptions........................................... 92
Section 7.7. Limitation on Investments and New Businesses...................................... 92
Section 7.8. Limitation on Credit Extensions................................................... 93
Section 7.9. Transactions with Affiliates...................................................... 93
Section 7.10. Prohibited Contracts.............................................................. 93
Section 7.11. Current Ratio..................................................................... 93
Section 7.12. Debt Coverage Ratio............................................................... 94
Section 7.13. Interest Coverage Ratio........................................................... 94
Section 7.14. Debt to Capital Ratio............................................................. 95
Section 7.15. Open Position; Certain Permitted Financial Instruments; NYMEX
Transactions............................................................................. 95
Section 7.16. 3794865 Canada Ltd................................................................ 97
ARTICLE VIII - Events of Default and Remedies........................................................ 97
Section 8.1. Events of Default................................................................. 97
Section 8.2. Remedies.......................................................................... 100
iii
ARTICLE IX - Agents.................................................................................. 100
Section 9.1. Appointment and Authority......................................................... 100
Section 9.2. Exculpation, Administrative Agent's Reliance, Etc................................. 102
Section 9.3. Credit Decisions.................................................................. 102
Section 9.4. Indemnification................................................................... 102
Section 9.5. Rights as Lender.................................................................. 103
Section 9.6. Sharing of Set-Offs and Other Payments............................................ 103
Section 9.7. Investments....................................................................... 104
Section 9.8. Benefit of Article IX............................................................. 104
Section 9.9. Resignation....................................................................... 104
Section 9.10. Other Agents..................................................................... 105
ARTICLE X - Miscellaneous............................................................................ 106
Section 10.1. Waivers and Amendments; Acknowledgments.......................................... 106
Section 10.2. Survival of Agreements; Cumulative Nature........................................ 108
Section 10.3. Notices.......................................................................... 108
Section 10.4. Payment of Expenses; Indemnity................................................... 109
Section 10.5. Joint and Several Liability; Parties in Interest; Assignments;
Replacement Notes........................................................................ 110
Section 10.6. Confidentiality.................................................................. 113
Section 10.7. Governing Law; Submission to Process............................................. 113
Section 10.8. Waiver of Judgment Interest Act (Alberta)........................................ 114
Section 10.9. Deemed Reinvestment Not Applicable............................................... 114
Section 10.10. Limitation on Interest........................................................... 114
Section 10.11. Termination; Limited Survival.................................................... 116
Section 10.12. Severability..................................................................... 116
Section 10.13. Counterparts..................................................................... 116
Section 10.14. Waiver of Jury Trial, Punitive Damages, etc...................................... 116
Section 10.15. Amendment and Restatement........................................................ 117
iv
Schedules and Exhibits:
----------------------
Schedule 1 - Lender Schedule
Schedule 2 - Disclosure Schedule
Schedule 3 - Security Schedule
Schedule 4 - Insurance Schedule
Schedule 5 - Pricing Grid
Exhibit A-1 - US Note
Exhibit A-2 - Canadian Revolver Note
Exhibit A-3 - Term Note
Exhibit B-1 - US Borrowing Notice
Exhibit B-2 - Canadian Revolver Borrowing Notice
Exhibit C-1 - US Continuation/Conversion Notice
Exhibit C-2 - Canadian Revolver Continuation/Conversion Notice
Exhibit C-3 - Term Continuation/Conversion Notice
Exhibit D - Certificate Accompanying Financial Statements
Exhibit E-1 - Opinion of In-House Counsel for Restricted Persons
Exhibit E-2 - Opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., Counsel for Restricted
Persons
Exhibit E-3 - Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Canadian Counsel for Restricted Persons
Exhibit F - Environmental Compliance Certificate
Exhibit G-1 - US Letter of Credit Application and Agreement
Exhibit G-2 - Canadian Letter of Credit Application and Agreement
Exhibit H - Assignment and Acceptance Agreement
Exhibit I - Intercreditor Agreement
v
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
THIS AMENDED AND RESTATED CREDIT AGREEMENT is made as of May 4, 2001 by and
among PLAINS MARKETING, L.P., a Delaware limited partnership ("US Borrower"),
PMC (NOVA SCOTIA) COMPANY, a Nova Scotia unlimited liability company ("Term
Borrower"), PLAINS MARKETING CANADA, L.P., an Alberta limited partnership
("Canadian Revolver Borrower"), ALL AMERICAN PIPELINE, L.P., a Texas limited
partnership ("All American"), PLAINS ALL AMERICAN PIPELINE, L.P. ("Plains MLP"),
a Delaware limited partnership, FLEET NATIONAL BANK, as administrative agent (in
such capacity, "Administrative Agent"), FIRST UNION NATIONAL BANK, as
syndication agent (in such capacity, "Syndication Agent"), BANK OF AMERICA,
N.A., as documentation agent (in such capacity, "Documentation Agent"), BANK
ONE, NA (MAIN OFFICE CHICAGO) and FORTIS CAPITAL CORP., as Senior Managing
Agents, THE TORONTO-DOMINION BANK, as Canadian administration agent (in such
capacity, "Canadian Administration Agent") and FLEET SECURITIES, INC., as lead
arranger and book manager (in such capacity, "Lead Arranger and Book Manager")
and the Lenders referred to below. In consideration of the mutual covenants and
agreements contained herein the parties hereto agree as follows:
W I T N E S S E T H
WHEREAS, US Borrower, as borrower, All American and Plains MLP, as
guarantors, and Administrative Agent and certain lenders named therein entered
into that certain Credit Agreement [Revolving Credit Facility] dated May 8,
2000, as amended (the "Existing Agreement"), providing for extensions of credit
by such financial institutions to US Borrower up to the amount of $500,000,000;
and
WHEREAS, US Borrower, All American and Plains MLP have requested that
Administrative Agent and the lenders under the Existing Agreement renew and
extend the aggregate unpaid principal balance of the loans, and participate in
outstanding letters of credit issued, thereunder and provide for the extension
of additional credit on the terms and conditions set forth herein;
Accordingly, the parties hereto agree as follows:
ARTICLE I - Definitions and References
--------------------------
Section 1.1. Defined Terms. As used in this Agreement, each of the
-------------
following terms has the meaning given to such term in this Section 1.1 or in
the sections and subsections referred to below:
"Administrative Agent" means Fleet National Bank, as Administrative Agent
--------------------
hereunder, and its successors in such capacity.
"Affiliate" means, as to any Person, each other Person that directly or
---------
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control
1
with, such Person. A Person shall be deemed to be "controlled by" any other
Person if such other Person possesses, directly or indirectly, power
(a) to vote 5% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"Affiliate Agreements" means the Crude Oil Marketing Agreement and the
--------------------
Omnibus Agreement.
"Agent" means any of the Administrative Agent or Canadian Administration
-----
Agent.
"Aggregate Percentage Share" means, with respect to a Lender, the
--------------------------
percentage obtained by dividing such Lender's Lender Commitment by the
Commitment.
"Agreement" means this Credit Agreement.
---------
"All American" means All American Pipeline, L.P., a Texas limited
------------
partnership.
"Applicable Lending Office" means, for each Lender and for each Type of
-------------------------
Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on the Lender Schedule or such other office of
such Lender (or an Affiliate of such Lender) as such Lender may from time to
time specify to Administrative Agent and US Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Leverage Level" means the level set forth below that
-------------------------
corresponds to the ratio of (i) Consolidated Funded Indebtedness of Plains MLP
and its Subsidiaries to (ii) the Consolidated EBITDA for the applicable period
of four Fiscal Quarters (the "Leverage Ratio"):
2
====================================================================
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 greater than or equal to 1.75 to 1.0
but less than 2.25 to 1.0
--------------------------------------------------------------------
Level VIII less than 1.75 to 1.0
====================================================================
The Leverage Ratio will be determined as of the date hereof based upon the pro
forma Initial Financial Statements, and shall be determined thereafter quarterly
by Administrative Agent within two (2) Business Days after Administrative
Agent's receipt of Plains MLP's Consolidated financial statements for the
immediate preceding Fiscal Quarter based upon: (i) Consolidated Funded
Indebtedness as of the end of such Fiscal Quarter, and (ii) the Consolidated
EBITDA for the four Fiscal Quarters ending with such Fiscal Quarter. The
Applicable Leverage Level shall become effective upon such determination of the
Leverage Ratio by Administrative Agent and shall remain effective until the next
such determination by Administrative Agent of the Leverage Ratio.
"Available Cash" has the meaning given such term in the Partnership
--------------
Agreement.
"BA Discount Rate" means, in respect of a BA being accepted by a Canadian
----------------
Revolver Lender on any date, (i) for a Canadian Revolver Lender that is listed
in Schedule I to the Bank Act (Canada), the average bankers' acceptance rate as
quoted on Reuters CDOR page (or such other page as may, from time to time,
replace such page on that service for the purpose of displaying quotations for
bankers' acceptances accepted by leading Canadian financial institutions) at
approximately 10:00 a.m. (Toronto, Ontario time) on such drawdown date for
bankers' acceptances having a comparable maturity date as the maturity date of
such BA (the "CDOR Rate"); or, if such rate is not available at or about such
---------
time, the average of the bankers' acceptance rates (expressed to five decimal
places) as quoted to the Canadian Administration Agent by the Schedule I BA
Reference Banks as of 10:00 a.m. (Toronto, Ontario time) on such drawdown date
for bankers' acceptances having a comparable maturity date as the maturity date
of such BA; and (ii) for a Canadian Revolver Lender that is listed in Schedule
II to the Bank Act (Canada) or a Canadian Revolver Lender that is listed in
Schedule III to the Bank Act
3
(Canada) that is not subject to the restrictions and requirements referred to in
subsection 524 (2) of the Bank Act (Canada), the rate established by the
Canadian Administration Agent to be the lesser of (A) the CDOR Rate plus 10
Basis Points and (B) the average of the bankers' acceptance rates (expressed to
five decimal places) as quoted to the Canadian Administration Agent by the
Schedule II BA Reference Banks as of 10:00 a.m. (Toronto, Ontario time) on such
drawdown date for bankers' acceptances having a comparable maturity date as the
maturity date of such BA.
"BA Equivalent Advance" means a Canadian Revolver Advance provided
---------------------
hereunder by a Canadian Revolver Lender in lieu of accepting and purchasing a BA
pursuant to Section 2B.8(f).
"Bankers' Acceptance" or "BA" means a Canadian Dollar draft of Canadian
------------------- --
Revolver Borrower, for a term selected by Canadian Revolver Borrower of either
one, two, three or six months (as reduced or extended by Canadian Administration
Agent, acting reasonably, to allow the maturity thereof to fall on a Business
Day) payable in Canada.
"Bankruptcy and Insolvency Act (Canada)" means the Bankruptcy and
--------------------------------------
Insolvency Act, S.C. 1992, c. 27, including the regulations made and, from time
to time, in force under that Act.
"Base Rate Loan" means any US Base Rate Loan or Canadian Revolver Prime
--------------
Rate Loan.
"Borrowers"means, collectively, US Borrower, Term Borrower, and Canadian
---------
Revolver Borrower, and their successor and assigns; "Borrower" means,
--------
individually, any of such Persons.
"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, or 2C.2 or the acceptance or purchase by
Canadian Revolver Lenders of Bankers' Acceptances issued by Canadian Revolver
Borrower under Section 2B.8.
"Borrowing Notice" means a written or telephonic request, or a written
----------------
confirmation, made by a Borrower which meets the requirements of Section 2A.2 or
2B.2.
"Business Day" means: (i) with respect to Canadian Obligations, a Canadian
------------
Business Day, and (ii) with respect to all other Obligations, a US Business Day.
"Canadian Administration Agent" means The Toronto-Dominion Bank.
-----------------------------
"Canadian Business Day" means any day, other than a Saturday, Sunday or day
---------------------
which shall be in the Provinces of Ontario and Alberta a legal holiday or day on
which banking institutions are required or authorized to close.
"Canadian Cash and Carry Purchases" means purchases of Petroleum Products
---------------------------------
for physical storage at any storage terminal, tankage or facility owned by any
Canadian Subsidiary
4
or in storage or in transit in pipelines Currently Approved by Majority Lenders
which constitute Hedged Canadian Eligible Inventory.
"Canadian Eligible Inventory" means inventories of Petroleum Products in
---------------------------
which Canadian Revolver Borrower has lawful and absolute title (specifically
excluding, however, tank bottoms and pipeline linefill of any Restricted Person
classified as a long-term asset), which are not subject to any Lien in favor of
any Person (other than Permitted Canadian Inventory Liens), which are subject to
a fully perfected first priority security interest (subject only to Permitted
Canadian Inventory Liens) in favor of Administrative Agent pursuant to the Loan
Documents prior to the rights of, and enforceable as such against, any other
Person, which are otherwise satisfactory to Majority Lenders in their reasonable
business judgment and which are located in storage locations (including
pipelines) which are either (a) owned by a Restricted Person or (b) Currently
Approved by Majority Lenders minus without duplication the amount of any
Permitted Canadian Inventory Lien on any such inventory. Canadian Eligible
Inventory shall specifically exclude inventory to be delivered in the current or
next succeeding trading month.
"Canadian Commitment Period" means the period from and including the date
--------------------------
hereof until the Canadian Revolver Maturity Date (or, if earlier, the day on
which the obligation of Canadian Revolver Lenders to make Canadian Revolver
Advances hereunder and the obligation of Canadian LC Issuer to issue Canadian
Letters of Credit hereunder has been terminated or the day on which any of the
Canadian Revolver Notes first becomes due and payable in full).
"Canadian Dollars" and "C$" means the lawful currency of Canada.
---------------- --
"Canadian LC Collateral" has the meaning given such term in Section
----------------------
2B.17(a).
"Canadian LC Issuer" means The Toronto-Dominion Bank in its capacity as the
------------------
issuer of Canadian Letters of Credit hereunder, and its successors in such
capacity. Canadian Administration Agent may, with the consent of Canadian
Revolver Borrower and the Canadian Revolver Lender in question, appoint any
Canadian Revolver Lender hereunder as a Canadian LC Issuer in place of or in
addition to The Toronto-Dominion Bank.
"Canadian LC Obligations" means, at the time in question, the sum of all
-----------------------
Matured Canadian LC Obligations plus the maximum amounts which Canadian LC
Issuer might then or thereafter be called upon to advance under all Canadian
Letters of Credit then outstanding.
"Canadian Lender Parties" means Canadian Administration Agent, Canadian LC
-----------------------
Issuer, and Canadian Revolver Lenders.
"Canadian Letter of Credit" means any letter of credit issued by Canadian
-------------------------
LC Issuer hereunder at the application of Canadian Revolver Borrower.
"Canadian Letter of Credit Fee Rate" means, on any day, the rate per annum
----------------------------------
set forth on the Pricing Grid as the "Canadian LC Fee Rate" based on the
Applicable Leverage Level on such date. Changes in the applicable Canadian
Letter of Credit Fee Rate will occur automatically
5
without prior notice as changes in the Applicable Leverage Level occur.
Administrative Agent will give notice promptly to Canadian Administration Agent
of any change (and its effective date) in the Applicable Leverage Level, and
Canadian Administration Agent will in turn give notice promptly to Canadian
Revolver Borrower and Canadian Revolver Lenders of such change in the Applicable
Leverage Level and the applicable Canadian Letter of Credit Fee Rate.
"Canadian Obligations" means all Liabilities from time to time owing by any
--------------------
Restricted Person to any Lender Party under or pursuant to any of the Canadian
Revolver Advances, Canadian Revolver Notes and Canadian Letters of Credit,
including all Canadian LC Obligations owing thereunder, or under or pursuant to
any guaranty of the obligations of Canadian Revolver Borrower under the Loan
Documents, or under or pursuant to any Security Document which secures the
payment and performance of such Liabilities. "Canadian Obligation" means any
-------------------
part of the Canadian Obligations.
"Canadian Revolver Advances" has the meaning given to such term in Section
--------------------------
2B.1.
"Canadian Revolver Prime Rate" means on any day a fluctuating rate of
----------------------------
interest per annum equal to the higher of (i) the rate of interest per annum
most recently announced by Canadian Administration Agent as its reference rate
for Canadian Dollar commercial demand loans made to a Person in Canada; and (ii)
Canadian Administration Agent's discount rate for Bankers' Acceptances having a
maturity of one month plus the Canadian Revolver Prime Rate Margin plus one-half
percent (0.5%) per annum. Changes in the Canadian Revolver Prime Rate resulting
from changes in the foregoing described reference rate or discount rate shall
take place immediately without notice or demand of any kind.
"Canadian Revolver Prime Rate Loan" means a Canadian Revolver Loan which
---------------------------------
bears interest at a rate based upon the Canadian Revolver Prime Rate.
"Canadian Revolver Prime Rate Margin" means, on any day, the percent per
-----------------------------------
annum set forth on the Pricing Grid as the "Canadian Revolver Prime Rate Margin"
based on the Applicable Leverage Level in effect on such date. Changes in the
applicable Canadian Revolver Prime Rate Margin will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Canadian Administration Agent of any change
(and its effective date) in the Applicable Leverage Level, and Canadian
Administration Agent will in turn give notice promptly to Canadian Revolver
Borrower and Canadian Revolver Lenders of such change in the Applicable Leverage
Level and the applicable Canadian Revolver Prime Rate Margin.
"Canadian Revolver Borrower" means Plains Marketing Canada, L.P., an
--------------------------
Alberta limited partnership.
"Canadian Revolver Commitment" means, in Canadian Dollars, the Dollar
----------------------------
Equivalent of $30,000,000. The Dollar Equivalent of each Canadian Revolver
Lender's Canadian Revolver Commitment shall be the amount set forth on the
Lender Schedule.
6
"Canadian Revolver Commitment Fee Rate" means, on any day, the rate per
-------------------------------------
annum set forth on the Pricing Grid as the "Canadian Revolver Commitment Fee
Rate" based on the Applicable Leverage Level on such date. Changes in the
applicable Canadian Revolver Commitment Fee Rate will occur automatically
without prior notice as changes in the Applicable Leverage Level occur.
Administrative Agent will give notice promptly to Canadian Administration Agent
of any change (and its effective date) in the Applicable Leverage Level, and
Canadian Administration Agent will in turn give notice promptly to Canadian
Revolver Borrower and Canadian Revolver Lenders of such change in the Applicable
Leverage Level and the applicable Canadian Revolver Commitment Fee Rate.
"Canadian Revolver Facility Usage" means, at the time in question, the
--------------------------------
Dollar Equivalent of the aggregate amount of Canadian Revolver Advances and
Canadian LC Obligations then outstanding.
"Canadian Revolver Lenders" means each signatory hereto designated as a
-------------------------
Canadian Revolver Lender, and the successors and permitted assigns of each such
party as holder of a Canadian Revolver Note.
"Canadian Revolver Loans" has the meaning given such term in Section 2B.1
-----------------------
hereof.
"Canadian Revolver Maturity Date" means April 30, 2005.
-------------------------------
"Canadian Revolver Notes" has the meaning given such term in Section 2B.1
-----------------------
hereof.
"Canadian Subsidiaries" means each of Term Borrower and Canadian Revolver
---------------------
Borrower, and each of their Subsidiaries, whether now owned or existing or
hereafter formed or acquired.
"CanPet Acquisition" means the acquisition by US Borrower and Canadian
------------------
Revolver Borrower of all or substantially all of the assets of CanPet Energy
Group (USA) Inc. and CanPet Energy Group, Inc., respectively, pursuant to the
CanPet Acquisition Documents.
"CanPet Acquisition Closing Date" means the date on which the CanPet
-------------------------------
Acquisition shall have been consummated and US Borrower and Canadian Revolver
Borrower shall have taken good and defensible title to the assets subject
thereof.
"CanPet Acquisition Documents" means the purchase and sale agreement, title
----------------------------
transfer documents and all other agreements or instruments executed and
delivered by US Borrower, Canadian Revolver Borrower, or any of their Affiliates
in connection therewith to consummate the CanPet Acquisition.
"Capital Lease" means a lease with respect to which the lessee is required
-------------
concurrently to recognize the acquisition of an asset and the incurrence of a
liability in accordance with GAAP.
7
"Capital Lease Obligation" means, with respect to any Person and a Capital
------------------------
Lease, the amount of the obligation of such Person as the lessee under such
Capital Lease which would, in accordance with GAAP, appear as a liability on a
balance sheet of such Person.
"Cash and Carry Purchases" means purchases of Petroleum Products for
------------------------
physical storage at a Plains Terminal or in storage or in transit in pipelines
Currently Approved by Majority Lenders which constitute Hedged Eligible
Inventory, as such terms are defined in the Marketing Credit Agreement.
"Cash Equivalents" means Investments in:
----------------
(a) marketable obligations, maturing within 12 months after acquisition
thereof, issued or unconditionally guaranteed by the United States of America or
the federal government of Canada or an instrumentality or agency thereof and
entitled to the full faith and credit of the United States of America or the
federal government of Canada, as the case may be;
(b) demand deposits and time deposits (including certificates of deposit)
maturing within 12 months from the date of deposit thereof, (i) with any office
of any Lender or (ii) with a domestic office of any national, state or
provincial bank or trust company which is organized under the Laws of the United
States of America or any state therein, or the federal government of Canada or
any province therein, which has capital, surplus and undivided profits of at
least $500,000,000, and whose long term certificates of deposit are rated at
least Aa3 by ▇▇▇▇▇'▇ or AA- by S&P;
(c) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in subsection (a) above entered
into with (i) any Lender or (ii) any other commercial bank meeting the
specifications of subsection (b) above;
(d) open market commercial paper, maturing within 270 days after
acquisition thereof, which are rated at least P-1 by ▇▇▇▇▇'▇ or A-1 by S&P; and
(e) money market or other mutual funds substantially all of whose assets
comprise securities of the types described in subsections (a) through (d) above.
"Change of Control" means the occurrence of any of the following events:
-----------------
(i) an event or series of events by which any Person or other entity or group of
Persons or other entities acting in concert as a partnership or other group (a
"Group of Persons") shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases, merger, consolidation or
otherwise, have become the beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of (A) 50% or more of the
combined voting power of the then outstanding voting stock of Resources, in the
case of any Person or Group of Persons constituting or controlled by Affiliates
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Investment Management, Inc., or (B) 40% or more of such
combined voting power in the case of any other Person or Group of Persons, (ii)
during any period of two consecutive years (A) the members of the board of
directors of Resources (the "Board") as of January 1, 2001, (B) any director
elected thereafter
8
in any annual meeting of the stockholders of Resources upon the recommendation
of the Board, and (C) any other member of the Board who will be recommended or
elected to succeed those Persons described in subclauses (A) and (B) of this
clause (ii) by a majority of such Persons who are then members of the Board,
cease for any reason to constitute collectively a majority of the Board then in
office, (iii) the direct or indirect sale, lease, exchange or other transfer of
all or substantially all of the Consolidated assets of Resources and its
Subsidiaries, to any Person or Group of Persons, or (iv) Resources, either
directly or through a Wholly Owned Subsidiary of Resources, shall cease to be
the legal and beneficial owner (as defined above) of more than 50% of the voting
power of the outstanding voting stock of General Partner, or General Partner
shall cease to be, directly or indirectly, the sole legal and beneficial owner
(as defined above) of all of the general partner interests (including all
securities which are convertible into general partner interests), of Plains MLP,
All American, or US Borrower, (v) any Person or Group of Persons other than
Resources or any Subsidiary of Resources shall be the legal and beneficial owner
(as defined above) of 50% or more of the combined voting power of the then total
partnership interests (including all securities which are convertible into
partnership interests) of Plains MLP, US Borrower, All American or any other
Restricted Person that is a partnership, (vi) Plains MLP or US Borrower shall
cease to be the sole legal and beneficial owner (as defined above) of all of the
limited partnership interests of US Borrower and All American, respectively
(including all securities which are convertible into limited partner interests),
(vii) US Borrower shall cease to be the direct or indirect owner of all capital
stock of Term Borrower or all partnership interests of Canadian Revolver
Borrower (other than the limited partnership interests of Canadian Revolver
Borrower that may be issued to CanPet Energy Group (USA), Inc. or CanPet Energy
Group Inc. as permitted under Section 7.4), or (viii) Resources and its Wholly
Owned Subsidiaries taken as a whole shall hold legal and beneficial ownership of
issued and outstanding partnership interests of Plains MLP representing less
than 5% of the total outstanding partnership interests of Plains MLP.
"Co-Agent" shall have the meaning given that term in Section 9.10.
--------
"Code" means the Internal Revenue Code of 1986, as amended from time to
----
time, together with all rules and regulations promulgated with respect thereto.
"Collateral" means all property of any kind which is subject to a Lien in
----------
favor of Lenders (or in favor of Administrative Agent, Canadian Administration
Agent, or the collateral agent under the Intercreditor Agreement for the benefit
of Lenders) or which, under the terms of any Security Document, is purported to
be subject to such a Lien, in each case granted or created to secure all or part
of the Obligations.
"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, in each case as of the time of determination.
"Companies' Creditors Arrangement Act (Canada)" means the Companies'
---------------------------------------------
Creditors Arrangement Act, R.S.C. 1985, c. C-36, including the regulations made
and from time to time in force under that Act.
9
"Consolidated" refers to the consolidation of any Person, in accordance
------------
with GAAP, with its properly consolidated subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such Person and
its properly consolidated subsidiaries.
"Consolidated EBITDA" means, for any period, the sum of (1) the
-------------------
Consolidated Net Income of Plains MLP and its Subsidiaries during such period,
plus (2) all interest expense which was deducted in determining such
Consolidated Net Income for such period, plus (3) all income taxes (including
any franchise taxes to the extent based upon net income) which were deducted in
determining such Consolidated Net Income, plus (4) all depreciation,
amortization (including amortization of good will and debt issue costs) and
other non-cash charges (including any provision for the reduction in the
carrying value of assets recorded in accordance with GAAP) which were deducted
in determining such Consolidated Net Income, plus (5) settlement payments made
in such period with respect to litigation arising out of the unauthorized
trading activity by US Borrower during the period of January 1, 1999 to November
20, 1999, not to exceed an aggregate amount of $6,963,000, minus (6) all non-
cash items of income which were included in determining such Consolidated Net
Income.
"Consolidated Funded Indebtedness" means as of any date, the sum of the
--------------------------------
following (without duplication): (i) all Indebtedness which is classified as
"long-term indebtedness" on a consolidated balance sheet of Plains MLP and its
Consolidated Subsidiaries prepared as of such date in accordance with GAAP and
any current maturities and other principal amount in respect of such
Indebtedness due within one year but which was classified as "long-term
indebtedness" at the creation thereof, (ii) indebtedness for borrowed money of
Plains MLP and its Consolidated Subsidiaries outstanding under a revolving
credit or similar agreement providing for borrowings (and renewals and
extensions thereof) over a period of more than one year, notwithstanding the
fact that any such borrowing is made within one year of the expiration of such
agreement, and (iii) Indebtedness in respect of Capital Leases of Plains MLP and
its Consolidated Subsidiaries; provided, however, Consolidated Funded
Indebtedness shall not include Indebtedness in respect of letters of credit,
Cash and Carry Purchases, Canadian Cash and Carry Purchases or margin deposits.
"Consolidated Net Income" means, for any period, Plains MLP's and its
-----------------------
Subsidiaries' gross revenues for such period, including any cash dividends or
distributions actually received from any other Person during such period, minus
Plains MLP's and its Subsidiaries' expenses and other proper charges against
income (including taxes on income, to the extent imposed), determined on a
Consolidated basis after eliminating earnings or losses attributable to
outstanding minority interests and excluding the net earnings of any Person
other than a Subsidiary in which Plains MLP or any of its Subsidiaries has an
ownership interest. Consolidated Net Income shall not include (i) any gain or
loss from the sale of assets, (ii) any extraordinary gains or losses, or (iii)
any non- cash gains or losses resulting from ▇▇▇▇ to market activity as a result
of the implementation of SFAS 133. In addition, Consolidated Net Income shall
not include the cost or proceeds of purchasing or selling options which are used
to hedge future activity, until the period in which such hedged future activity
occurs.
10
"Consolidated Net Worth" means the remainder of all Consolidated assets, as
----------------------
determined in accordance with GAAP, of Plains MLP and its Subsidiaries minus the
sum of (a) Plains MLP's Consolidated liabilities, as determined in accordance
with GAAP, and (b) all outstanding Minority Interests. The effect of any
increase or decrease in net worth in any period as a result of items of income
or loss not reflected in the determination of net income but reflected in the
determination of comprehensive income (to the extent provided under GAAP as in
effect on the date hereof) shall be excluded in determining Consolidated Net
Worth. "Minority Interests" means the book value of any equity interests in any
of Plains MLP's Subsidiaries (exclusive of the general partner interests held,
directly or indirectly, by the General Partner in US Borrower, All American or
any other Restricted Person and by Term Borrower in Canadian Revolver Borrower,
in each case, of up to two percent (2%) of the aggregate ownership interest in
any such Person) which equity interests are owned by a Person other than Plains
MLP or a Wholly Owned Subsidiary of Plains MLP.
"Continue", "Continuation" and "Continued" shall refer to (i) the
-------- ------------ ---------
continuation pursuant to Section 2A.3 or 2C.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.
"Continuation/Conversion Notice" means (i) a written or telephonic request,
------------------------------
or a written confirmation, made by a Borrower which meets the requirements of
Section 2A.3, 2B.3, or 2C.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, and (iii) a conversion pursuant
to Section 2C.2 of one Type of Term Loan into another Type of Term Loan.
"Crude Oil Marketing Agreement" means that certain Crude Oil Marketing
-----------------------------
Agreement among Resources, Plains Illinois Inc., ▇▇▇▇▇▇▇ Resources, L.P.,
▇▇▇▇▇▇▇▇ Inc. and Borrower dated November 23, 1998.
"Current Trading Month" has the meaning given that term in Section 7.15.
---------------------
"Currently Approved by Majority Lenders" means such Person (including a
--------------------------------------
limit on the maximum credit exposure to any such Person), storage location,
pipeline, form of Letter of Credit or other matter as the case may be, as
reflected in the most recent written notice given by Administrative Agent to
Borrower as being approved by Majority Lenders. Each such written notice will
supersede and revoke each prior notice.
"Debt Coverage Ratio" shall have the meaning given that term in Section
-------------------
7.12.
"Default" means any Event of Default and any default, event or condition
-------
which would, with the giving of any requisite notices and the passage of any
requisite periods of time, constitute an Event of Default.
11
"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), or (ii) the Term LIBOR Rate Margin then in effect for each Term
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, or (ii) the Term Base Rate Margin then in
effect for each Term 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.
"Default Rate Period" means (i) any period during which an Event of
-------------------
Default, other than pursuant to Section 8.1 (a) or (b), is continuing, provided
that such period shall not begin until notice of the commencement of the Default
Rate has been given to US Borrower, Term Borrower, or Canadian Revolver
Borrower, as applicable, by Administrative Agent upon the instruction by
Majority Lenders and (ii) any period during which any Event of Default pursuant
to Section 8.1 (a) or (b) is continuing unless US Borrower, Term Borrower, or
Canadian Revolver Borrower, as applicable, has been notified otherwise by
Administrative Agent upon the instruction by Majority Lenders.
"Depository Bills and Notes Act (Canada)" means the Depository Bills and
---------------------------------------
Notes Act (Canada), R.S.C. 1998, c. 13, including the regulations made and, from
time to time, in force under that Act.
"Disclosure Schedule" means Schedule 2 hereto.
-------------------
"Discount Proceeds" means, in respect of each Bankers' Acceptance, funds in
-----------------
an amount which is equal to:
Face Amount
------------------
1 + (Rate x Term)
------------
365
(where "Face Amount" is the principal amount of the Bankers' Acceptance being
purchased, "Rate" is the BA Discount Rate divided by 100 and "Term" is the
number of days in the term of the Bankers' Acceptance.)
"Dollar Equivalent" of any amount of any currency at any date means (i) if
-----------------
such currency is Dollars, the amount of such currency, or (ii) if such currency
is Canadian Dollars, the equivalent in Dollars of such amount of such currency
based upon the rate of exchange for such conversion as quoted by the Bank of
Canada at approximately 12:00 noon, Toronto time (or, if
12
not so quoted, the spot rate of exchange quoted for wholesale transactions made
by Administrative Agent) on the date on or as of which such amount is to be
determined.
"Dollars" and "$" means the lawful currency of the United States of
------- -
America, except where otherwise specified.
"Effective Time" shall have the meaning given that term in Section 10.15.
--------------
"Eligible Transferee" means a Person which either (a) is a Lender, or (b)
-------------------
is consented to as an Eligible Transferee by Administrative Agent and, so long
as no Default or Event of Default is continuing, by the relevant Borrower, which
consents in each case will not be unreasonably withheld (provided that no Person
organized outside the United States may be an Eligible Transferee with respect
to US Obligations if US Borrower or Term Borrower would be required to pay
withholding taxes on interest or principal owed to such Person and, provided
that no Person organized outside Canada may be an Eligible Transferee with
respect to Canadian Obligations if Canadian Revolver Borrower would be required
to pay withholding taxes on interest or principal owed to such Person).
"Environmental Laws" means any and all Laws relating to the environment or
------------------
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.
"Equity Offering Date" means the date on which the MLP, US Borrower or any
--------------------
of their Wholly Owned Subsidiaries receive, in the aggregate, net proceeds of
not less than $40,000,000 from one or more private or public offerings of equity
securities made after April 15, 2001.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Affiliate" means each Restricted Person and all members of a
---------------
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control that, together with such Restricted Person,
are treated as a single employer under Section 414 of the Code.
"ERISA Plan" means any employee pension benefit plan subject to Title IV of
----------
ERISA maintained by any ERISA Affiliate with respect to which any Restricted
Person has a fixed or contingent liability.
"Event of Default" has the meaning given to such term in Section 8.1.
----------------
"Existing Agreement" has the meaning given in the recitals hereto.
------------------
13
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/1000th of one percent) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate quoted to Administrative Agent on such day on such transactions as
determined by Administrative Agent.
"Fiscal Quarter" means a three-month period ending on March 31, June 30,
--------------
September 30 or December 31 of any year.
"Fiscal Year" means a twelve-month period ending on December 31 of any
-----------
year.
"Floating Price Contract" has the meaning given that term in Section 7.15.
-----------------------
"GAAP" means those generally accepted accounting principles and practices
----
which are recognized as such by the Financial Accounting Standards Board (or any
generally recognized successor) and which, in the case of Plains MLP and its
Consolidated Subsidiaries, are applied for all periods after the date hereof in
a manner consistent with the manner in which such principles and practices were
applied to the Initial Financial Statements. If any change in any accounting
principle or practice is required by the Financial Accounting Standards Board
(or any such successor) in order for such principle or practice to continue as a
generally accepted accounting principle or practice, all reports and financial
statements required hereunder with respect to Plains MLP or with respect to
Plains MLP and its Consolidated Subsidiaries may be prepared in accordance with
such change, but all calculations and determinations to be made hereunder may be
made in accordance with such change only after notice of such change is given to
each Lender and Majority Lenders agree to such change insofar as it affects the
accounting of Plains MLP or of Plains MLP and its Consolidated Subsidiaries.
"General Partner" means Plains All American Inc., a Delaware corporation.
---------------
"Guarantors" means Plains MLP and all of its Subsidiaries (including All
----------
American but excluding US Borrower with respect to the US Commitment, 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.
"Hazardous Materials" means any substances regulated under any
-------------------
Environmental Law, whether as pollutants, contaminants, or chemicals, or as
industrial, toxic or hazardous substances or wastes, or otherwise.
14
"Hedged Canadian Eligible Inventory" means:
----------------------------------
(a) Canadian Eligible Inventory or
(b) Petroleum Products inventory scheduled to be purchased in the
following month, which in either case has been
(i) hedged for delivery within the next 190 days (or as to liquefied
petroleum gases, within the next 365 days) by either
(x) a contract on the NYMEX arranged through brokers approved by
Administrative Agent and with whom a three-party agreement among Canadian
Revolver Borrower, Administrative Agent and such broker has been entered in
form and substance satisfactory to Administrative Agent or
(y) a contract for physical delivery of such inventory (1) to a
counterparty whose Debt Rating is either at least Baa3 by Moody's or at
least BBB- by S&P (such Moody's or S&P reference being to the Canadian
affiliate of each); (2) fully and unconditionally guaranteed as to payment
by a Person whose Debt Rating is either at least Baa3 by Moody's or at
least BBB- by S&P (such Moody's or S&P reference being to the Canadian
affiliate of each); (3) from any other Person Currently Approved by
Majority Lenders; or (4) fully covered by a letter of credit from any
national or state bank or trust company which is organized under the
federal laws of Canada or any province thereof or any branch licensed to
operate under the federal laws of Canada or any province thereof, which is
a branch of a bank organized under any country which is a member of the
Organization for Economic Cooperation and Development, in each case which
has capital, surplus and undivided profits of at least $500,000,000 and
whose commercial paper is rated at least P-1 by Moody's or A-1 by S&P (such
Moody's or S&P reference being to the Canadian affiliate of each), or
(ii) otherwise hedged in a manner satisfactory to Majority Lenders.
The value of Hedged Canadian Eligible Inventory shall be the volume of the
inventory times the prices fixed in such hedge, minus all storage,
transportation and other applicable costs.
"Hedging Contract" means (a) any agreement providing for options, swaps,
----------------
floors, caps, collars, forward sales or forward purchases involving interest
rates, commodities or commodity prices, equities, currencies, bonds, or indexes
based on any of the foregoing, (b) any option, futures or forward contract
traded on an exchange, and (c) any other derivative agreement or other similar
agreement or arrangement, excluding in each case for purposes of Section 7.3
only, any such agreement or contract covering Petroleum Products.
"Highest Lawful Rate" means, with respect to each Lender Party to whom
-------------------
Obligations are owed, the maximum nonusurious rate of interest that such Lender
Party is permitted under applicable Law to contract for, take, charge, or
receive with respect to such Obligations. All
15
determinations herein of the Highest Lawful Rate, or of any interest rate
determined by reference to the Highest Lawful Rate, shall be made separately for
each Lender Party as appropriate to assure that the Loan Documents are not
construed to obligate any Person to pay interest to any Lender Party at a rate
in excess of the Highest Lawful Rate applicable to such Lender Party.
"Incentive and Option Plans" means the Plains All American Inc. 1998 Long-
--------------------------
Term Incentive Plan as in effect on the date hereof, the Plains All American
Inc. Management Incentive Plan as in effect on the date hereof and those certain
Transaction Grant Agreements disclosed in writing to Administrative Agent prior
to the date of this Agreement.
"Income Tax Act (Canada)" means the Income Tax Act, R.S.C. 1985 c. 1 (fifth
-----------------------
supplement), including the regulations made and, from time to time, in force
under that Act.
"Indebtedness" of any Person means its Liabilities (without duplication) in
------------
any of the following categories:
(a) Liabilities for borrowed money,
(b) Liabilities constituting an obligation to pay the deferred purchase
price of property or services,
(c) Liabilities evidenced by a bond, debenture, note or similar
instrument,
(d) Liabilities (other than reserves for taxes and reserves for contingent
obligations) which (i) would under GAAP be shown on such Person's balance sheet
as a liability and (ii are payable more than one year from the date of creation
or incurrence thereof,
(e) Liabilities arising under Hedging Contracts (on a net basis to the
extent netting is provided for in the applicable Hedging Contract),
(f) Liabilities constituting principal under Capital Leases,
(g) Liabilities arising under conditional sales or other title retention
agreements,
(h) Liabilities owing under direct or indirect guaranties of Liabilities
of any other Person or otherwise constituting obligations to purchase or acquire
or to otherwise protect or insure a creditor against loss in respect of
Liabilities of any other Person (such as obligations under working capital
maintenance agreements, agreements to keep-well, or agreements to purchase
Liabilities, assets, goods, securities or services), but excluding endorsements
in the ordinary course of business of negotiable instruments in the course of
collection,
(i) Liabilities consisting of an obligation to purchase or redeem
securities or other property, if such Liabilities arises out of or in connection
with the sale or issuance of the same or similar securities or property (for
example, repurchase agreements, mandatorily redeemable preferred stock and
sale/leaseback agreements),
16
(j) Liabilities with respect to letters of credit or applications or
reimbursement agreements therefor,
(k) Liabilities with respect to banker's acceptances, or
(l) Liabilities with respect to obligations to deliver goods or services
in consideration of advance payments therefor;
provided, however, that the "Indebtedness" of any Person shall not include
Liabilities that were incurred in the ordinary course of business by such Person
on ordinary trade terms to vendors, suppliers, or other Persons providing goods
and services for use by such Person in the ordinary course of its business,
unless and until such Liabilities are outstanding more than 120 days after the
date the respective goods are delivered or the respective services are rendered,
other than Liabilities contested in good faith by appropriate proceedings, if
required, and for which adequate reserves are maintained on the books of such
Person in accordance with GAAP.
"Initial Financial Statements" means (i) the audited Consolidated financial
----------------------------
statements of Plains MLP as of December 31, 2000, (ii) the unaudited
consolidating balance sheet and income statement of Plains MLP as of December
31, 2000, (iii) the unaudited Consolidated and consolidating balance sheet and
income statement of Plains MLP as of February 28, 2001, and (iv) the unaudited
pro forma Consolidated and consolidating balance sheet of Plains MLP as of
February 28, 2001, after giving effect to the ▇▇▇▇▇▇ Acquisition and the CanPet
Acquisition.
"Insurance Schedule" means Schedule 4 attached hereto.
------------------
"Intercreditor Agreement" means that certain Intercreditor Agreement of
-----------------------
even date herewith among Administrative Agent, the Lenders and the other Lender
Parties, and the "Administrative Agent", the "Lenders" and the "LC Issuer" under
the Marketing Credit Agreement substantially in the form of Exhibit I hereto.
"Interest Act (Canada)" means the Interest Act, R.S.C. 1985, c. I-15,
---------------------
including the regulations made and, from time to time, in force under that Act.
"Interest Expense" means, with respect to any period, the sum (without
----------------
duplication) of the following (in each case, eliminating all offsetting debits
and credits between Plains MLP and its Subsidiaries and all other items required
to be eliminated in the course of the preparation of Consolidated financial
statements of Plains MLP and its Subsidiaries in accordance with GAAP): (a) all
interest and commitment fees in respect of Indebtedness of Plains MLP or any of
its Subsidiaries (including imputed interest on Capital Lease Obligations) which
are accrued during such period and whether expensed in such period or
capitalized; plus (b) all fees, expenses and charges in respect of letters of
credit issued for the account of Plains MLP or any of its Subsidiaries, which
are accrued during such period and whether expensed in such period or
capitalized. The determination of Interest Expense for the Fiscal Quarter ended
March 31, 2000 shall exclude (i) interest and fees under the Paribas Linefill
Financing (as defined in the Existing Agreement), and (ii) interest paid under
the All American Agreement (as defined in the Existing
17
Agreement) with respect to a principal amount equal to the net proceeds applied
from the assets sold pursuant to the El Paso Longline Sale Agreement (as defined
in the Existing Agreement).
"Interest Payment Date" means (a) with respect to each Base Rate Loan, the
---------------------
last day of each March, June, September and December beginning June 30, 2001,
and (b) with respect to each LIBOR Loan, the last day of the Interest Period
that is applicable thereto and, if such Interest Period is six, or twelve months
in length, the dates specified by Administrative Agent which are approximately
three, six, and nine months (as appropriate) after such Interest Period begins;
provided that the last Business Day of each calendar month shall also be an
Interest Payment Date for each such Loan so long as any Event of Default exists
under Section 8.1 (a) or (b).
"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/Con version 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 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, or (ii) a Term Loan that would
end after the Term Loan Maturity Date.
"Investment" means any investment made, directly or indirectly in any
----------
Person, whether by acquisition of shares of capital stock, indebtedness or other
obligations or securities or by loan, advance, capital contribution or
otherwise, and whether made in cash, by the transfer of property or by any other
means.
"Judgment Interest Act (Alberta)" means the Judgment Interest Act, S.A.
-------------------------------
1984 c. J-O.5, including the regulations made and, from time to time, in force
under that Act.
"Law" means any statute, law, regulation, ordinance, rule, treaty,
---
judgment, order, decree, permit, concession, franchise, license, agreement or
other governmental restriction of the United States or Canada or any state,
province, or political subdivision thereof or of any foreign country or any
department, state, province or other political subdivision thereof.
"LC Application" means any application for a Letter of Credit hereafter
--------------
made by US Borrower or Canadian Revolver Borrower to US LC Issuer or Canadian LC
Issuer.
"LC Obligations" means: (i) with respect to US Lenders, US LC Obligations,
--------------
and (ii) with respect to Canadian Revolver Lenders, Canadian LC Obligations.
18
"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, in each case as of
the time of determination.
"Lender Parties" means Administrative Agent, US LC Issuer, Canadian
--------------
Administration Agent, Canadian LC Issuer, and all Lenders.
"Lenders" means, collectively, the US Lenders, the Term Lenders and the
-------
Canadian Revolver Lenders.
"Lender Schedule" means Schedule 1 hereto.
---------------
"Letter of Credit" means any letter of credit issued by US LC Issuer
----------------
hereunder or under the Existing Agreement or any letter of credit issued by
Canadian LC Issuer hereunder at the application of US Borrower or Canadian
Revolver Borrower.
"Liabilities" means, as to any Person, all indebtedness, liabilities and
-----------
obligations of such Person, whether matured or unmatured, liquidated or
unliquidated, primary or secondary, direct or indirect, absolute, fixed or
contingent, and whether or not required to be considered pursuant to GAAP.
"LIBOR Loan" means a Loan that bears interest at a rate based upon the US
----------
LIBOR Rate.
"Lien" means, with respect to any property or assets, any right or interest
----
therein of a creditor to secure Liabilities owed to it or any other arrangement
with such creditor which provides for the payment of such Liabilities out of
such property or assets or which allows such creditor to have such Liabilities
satisfied out of such property or assets prior to the general creditors of any
owner thereof, including any lien, mortgage, security interest, pledge, deposit,
production payment, rights of a vendor under any title retention or conditional
sale agreement or lease substantially equivalent thereto, tax lien, mechanic's
or materialman's lien, or any other charge or encumbrance for security purposes,
whether arising by Law or agreement or otherwise, but excluding any right of
offset which arises without agreement in the ordinary course of business.
"Lien" also means any filed financing statement, any registration of a pledge
(such as with an issuer of uncertificated securities), or any other arrangement
or action which would serve to perfect a Lien described in the preceding
sentence, regardless of whether such financing statement is filed, such
registration is made, or such arrangement or action is undertaken before or
after such Lien exists.
"Loan Documents" means this Agreement, the Notes, the Security Documents,
--------------
the Letters of Credit, the LC Applications, the BAs, the Hedging Contracts
described in Sections 2A.14, 2B.18 and 2C.5, and all other agreements,
certificates, documents, instruments and writings at any time delivered in
connection herewith or therewith (exclusive of term sheets and commitment
letters).
19
"Loans" means, collectively, the Term Loans, the Canadian Revolver
-----
Advances, and the US Loans.
"Majority Lenders" means Lenders whose Aggregate Percentage Shares exceed
----------------
sixty-six and two thirds percent (66 2/3%).
"Marketing Credit Agreement" means that certain Amended and Restated Credit
--------------------------
Agreement [Letter of Credit and Hedged Inventory Facility] of even date herewith
among US Borrower, All American and Plains MLP as guarantors, and the agents and
financial institutions as lenders named therein.
"Material Adverse Change" means a material and adverse change, from the
-----------------------
state of affairs presented in the Initial Financial Statements or as represented
or warranted in any Loan Document, to (a) Plains MLP's Consolidated financial
condition, (b) Plains MLP's Consolidated operations, properties or prospects,
considered as a whole, (c) US Borrower's, Term Borrower's, or Canadian Revolver
Borrower's ability to timely pay its Obligations, or (d) the enforceability of
the material terms of any Loan Document.
"Matured LC Obligations" means the sum of all Matured Canadian LC
----------------------
Obligations and Matured US LC Obligations.
"Matured Canadian LC Obligations" means all amounts paid by Canadian LC
-------------------------------
Issuer on drafts or demands for payment drawn or made under or purported to be
under any Canadian Letter of Credit and all other amounts due and owing to
Canadian LC Issuer under any LC Application for any such Canadian Letter of
Credit, to the extent the same have not been repaid to Canadian LC Issuer (with
the proceeds of Loans or otherwise).
"Matured US LC Obligations" means all amounts paid by US LC Issuer on
-------------------------
drafts or demands for payment drawn or made under or purported to be under any
US Letter of Credit and all other amounts due and owing to US LC Issuer under
any LC Application for any such US Letter of Credit, to the extent the same have
not been repaid to US LC Issuer (with the proceeds of Loans or otherwise).
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc., or its successor.
-------
"▇▇▇▇▇▇ Acquisition" means the acquisition by Canadian Revolver Borrower of
------------------
certain assets from ▇▇▇▇▇▇ Oil Company Ltd. as previously disclosed by US
Borrower to Administrative Agent and Lenders pursuant to the ▇▇▇▇▇▇ Acquisition
Documents.
"▇▇▇▇▇▇ Acquisition Closing Date" means the date on which the ▇▇▇▇▇▇
-------------------------------
Acquisition shall have been consummated and Canadian Revolver Borrower shall
have taken good and defensible title to the assets subject thereof.
"▇▇▇▇▇▇ Acquisition Documents" means the purchase and sale agreement, title
----------------------------
transfer documents and all other agreements or instruments executed and
delivered by Canadian Revolver
20
Borrower or any Affiliate of Canadian Revolver Borrower in connection therewith
to consummate the ▇▇▇▇▇▇ Acquisition.
"Net Proceeds" means with respect to any Bankers' Acceptance, the Discount
------------
Proceeds less the amount equal to the applicable Stamping Fee Rate multiplied by
the face amount of such Bankers' Acceptance.
"Notes" means, collectively, the Term Notes, the Canadian Revolver Notes,
-----
and the US Notes.
"NYMEX" means the New York Mercantile Exchange.
-----
"Obligations" means, collectively, the US Obligations, the Canadian
-----------
Obligations, and all other Liabilities from time to time owing by any Restricted
Person to any Lender Party under or pursuant to any of the Loan Documents,
including all US LC Obligations, all Canadian LC Obligations and Liabilities
arising under Hedging Contracts that are included in Loan Documents.
"Obligation" means any part of the Obligations.
"Offsetting Position" means any offsetting sale or purchase agreement, an
-------------------
offsetting NYMEX contract, an offsetting physical inventory position (excluding
tank bottoms and pipeline linefill inventory classified as a long term asset and
working inventory not held for resale), or an offsetting swap, collar or option
contract, in each case eliminating price risk and substantially all basis risk.
"Omnibus Agreement" means that certain Omnibus Agreement between Resources,
-----------------
Plains MLP, US Borrower, All American and General Partner dated November 23,
1998.
"Open Position" means, with respect to Petroleum Products inventory or
-------------
Petroleum Products purchase or sale contracts, any position that does not have
an Offsetting Position.
"Partnership Agreement" means the Second Amended and Restated Agreement of
---------------------
Limited Partnership of Plains MLP dated November 23, 1998.
"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, and
(c) 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.
21
"Permitted Acquisitions" means (A) the acquisition of all of the capital
----------------------
stock or other equity interest in a Person (exclusive of general partner
interests held by General Partner or another Wholly Owned Subsidiary of
Resources not in excess of a 1% economic interest and exclusive of director
qualifying shares and other equity interests required to be held by an Affiliate
to comply with a requirement of Law), (B) the CanPet Acquisition and the ▇▇▇▇▇▇
Acquisition, or (C) any other acquisition of all or a portion of the business,
assets or operations of a Person (whether in a single transaction or a series of
related transactions), provided that (i) prior to and after giving effect to
such acquisition no Default or Event of Default shall have occurred and be
continuing; (ii) all representations and warranties shall be true and correct as
if restated immediately following the consummation of such acquisition; (iii)
substantially all of such business, assets and operations so acquired, or of the
Person so acquired, consists of Petroleum Products and/or gas marketing,
gathering, transportation, storage, terminaling and pipeline operation, and (iv)
(a) the total purchase price of any such acquisition does not exceed $5,000,000,
and (b) if the total purchase price of any such acquisition exceeds $5,000,000,
then the aggregate of the total purchase prices (including any assumed
Indebtedness) for all such acquisitions from the date hereof through the US
Maturity Date does not exceed $50,000,000 (which amount, for the avoidance of
doubt, excludes acquisitions described in the preceding clause (iv)(a)).
"Permitted Canadian Inventory Liens" means any Lien, and the amount of any
----------------------------------
Liability secured thereby, on Petroleum Products inventory which would be a
Permitted Lien under Section 7.2(b) (so long as such Lien is inchoate) or
Section 7.2(d).
"Permitted Investments" means:
---------------------
(a) Cash Equivalents,
(b) Investments described in the Disclosure Schedule,
(c) Investments by any Canadian Subsidiary in any other Restricted Person
that is a Borrower or Guarantor,
(d) Investments by Plains MLP or any of its Subsidiaries (other than any
Canadian Subsidiaries) in:
(I) any Wholly Owned Subsidiary of Plains MLP which is a Borrower or
a Guarantor, other than any Canadian Subsidiary,
(II) any Canadian Subsidiary with respect to the consummation of the
▇▇▇▇▇▇ Acquisition and the CanPet Acquisition, provided that (A) the
--------
aggregate amount of such Investments in Canadian Subsidiaries shall not
exceed (y) $57,000,000 with respect to the ▇▇▇▇▇▇ Acquisition, the proceeds
of which shall be used to consummate the ▇▇▇▇▇▇ Acquisition, to fund
Canadian Cash and Carry Purchases and for working capital purposes with
respect to the ▇▇▇▇▇▇ Acquisition, and (z) $84,000,000 (including any
Investment described in clause (y) above), such Investment in excess of the
Investment
22
described in clause (y) above with respect to the CanPet Acquisition, the
proceeds of which shall be used to consummate the CanPet Acquisition, to
fund Canadian Cash and Carry Purchases and for working capital purposes
with respect to the CanPet Acquisition,
(III) any Canadian Subsidiary pursuant to guaranties of trade payables
of any Canadian Subsidiary incurred and paid in the ordinary course of
business on ordinary trade terms,
(IV) US Borrower or Canadian Revolver Borrower consisting solely of
units issued by Plains MLP to be used by US Borrower or Canadian Revolver
Borrower to satisfy contingent payment obligations of such Persons as
contemplated by the CanPet Acquisition Documents;
(V) any Canadian Subsidiary consisting solely of one or more loans,
provided (A) the Canadian Revolver Facility Usage shall equal the Canadian
Revolver Commitment, (B) the aggregate outstanding amount of all such loans
shall not at any time exceed the Dollar Equivalent of $10,000,000, (C) the
proceeds of each such loan shall be used solely as short-term working
capital for specifically identified purposes, and (D) each such loan shall
be repaid within 90 days after the making thereof from funds other than
proceeds of loans made pursuant to this clause (V); and
(VI) any Canadian Subsidiary not covered by the preceding clauses
(II), (III), (IV) or (V), provided the aggregate outstanding amount of such
other Investments in Canadian Subsidiaries shall not at any time exceed the
Dollar Equivalent of $5,000,000,
(e) 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 (e)
--------
minus any amounts received on such Investments (excluding dividends thereon)
-----
shall not at any time exceed the Dollar Equivalent of $5,000,000), and
(f) Permitted Acquisitions.
"Permitted Lien" has the meaning given to such term in Section 7.2.
--------------
"Person" means an individual, corporation, partnership, limited liability
------
company, association, joint stock company, trust or trustee thereof, estate or
executor thereof, unincorporated organization or joint venture, Tribunal, or any
other legally recognizable entity.
"Petroleum Products" means crude oil, condensate, natural gas liquids
------------------
(NGL's), liquefied petroleum gases (LPG's) or any blend thereof.
"Plains MLP" means Plains All American Pipeline, L.P., a Delaware limited
----------
partnership.
23
"Plains Terminal" means any storage terminal, tankage or facility owned by
---------------
any Restricted Person.
"Pricing Grid" means Schedule 5 attached hereto.
------------
"Rating Agency" means either S&P or Moody's.
-------------
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System as from time to time in effect.
"Resources" means Plains Resources Inc., a Delaware corporation.
---------
"Restricted Person" means any of Plains MLP and each Subsidiary of Plains
-----------------
MLP, including but not limited to US Borrower, All American, Term Borrower,
Canadian Revolver Borrower and each Subsidiary of US Borrower, All American,
Term Borrower, and Canadian Revolver Borrower.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw Hill,
---
Inc.) or its successor.
"Schedule I BA Reference Banks" means the Lenders listed in Schedule I to
-----------------------------
the Bank Act (Canada) as are, at such time, designated by Canadian
Administration Agent, with the prior consent of Canadian Revolver Borrower
(acting reasonably), as the Schedule I BA Reference Banks.
"Schedule II BA Reference Banks" means the Lenders listed in Schedule II to
------------------------------
the Bank Act (Canada) as are, at such time, designated by Canadian
Administration Agent, with the prior consent of Canadian Revolver Borrower
(acting reasonably,) as the Schedule II BA Reference Banks.
"Security Documents" means the instruments listed in the Security Schedule
------------------
and all other security agreements, deeds of trust, mortgages, chattel mortgages,
pledges, guaranties, financing statements, continuation statements, extension
agreements and other agreements or instruments now, heretofore, or hereafter
delivered by any Restricted Person to Administrative Agent in connection with
this Agreement or any transaction contemplated hereby to secure or guarantee the
payment of any part of the Obligations or the performance of any Restricted
Person's other duties and obligations under the Loan Documents.
"Security Schedule" means Schedule 3 hereto.
-----------------
"Stamping Fee Rate" means the rate per annum set forth on the Pricing Grid
-----------------
as the "Stamping Fee Rate" based on the Applicable Leverage Level on such date,
provided that during a Default Rate Period, the Stamping Fee Rate shall be
increased by two percent (2%). Changes in the applicable Stamping Fee Rate will
occur automatically without prior notice as changes in the Applicable Leverage
Level occur and shall be effective with respect to BA's issued on and
24
after such change, but shall not apply with respect to any outstanding BA's.
Administrative Agent will give notice promptly to Canadian Administration Agent
of any change (and its effective date) in the Applicable Leverage Level, and
Canadian Administration Agent will in turn give notice promptly to Canadian
Revolver Borrower and Canadian Revolver Lenders of such change in the Applicable
Leverage Level and the applicable Stamping Fee Rate.
"Subsidiary" means, with respect to any Person, any corporation,
----------
association, partnership, limited liability company, joint venture, or other
business or corporate entity, enterprise or organization which is directly or
indirectly (through one or more intermediaries) controlled or owned more than
fifty percent by such Person.
"Term Base Rate Loan" means a Term Loan which does not bear interest at a
-------------------
rate based upon the US LIBOR Rate.
"Term Base Rate Margin" means, on any day (a) from the date hereof through
---------------------
but not including the earlier to occur of (i) the six-month anniversary of the
date hereof, or (ii) the Equity Offering Date, the greater of (A) 1.500% per
annum and (B) the percent per annum set forth on the Pricing Grid as the "Term
Base Rate Margin" based on the Applicable Leverage Level in effect on such date,
and (b) on and after such date, the percent per annum set forth on the Pricing
Grid as the "Term Base Rate Margin" based on the Applicable Leverage Level in
effect on such date. Changes in the applicable Term Base Rate Margin will occur
automatically without prior notice as changes in the Applicable Leverage Level
occur. Administrative Agent will give notice promptly to Term Borrower and Term
Lenders of changes in the Term Base Rate Margin.
"Term Borrower" means PMC (Nova Scotia) Company, a Nova Scotia unlimited
-------------
liability company.
"Term Lenders" means each signatory hereto designated as a Term Lender, and
------------
the successors and each permitted assign of each such party as holder of a Term
Note.
"Term LIBOR Loan" means a Term Loan that bears interest at a rate based
---------------
upon the US LIBOR Rate.
"Term LIBOR Rate Margin" means, on any day (a) from the date hereof through
----------------------
but not including the earlier to occur of (i) the six-month anniversary of the
date hereof, or (ii) the Equity Offering Date, the greater of (A) 3.00% per
annum and (B) the percent per annum set forth on the Pricing Grid as the "Term
LIBOR Rate Margin" based on the Applicable Leverage Level in effect on such
date, and (b) on and after such date, the percent per annum set forth on the
Pricing Grid as the "Term LIBOR Rate Margin" based on the Applicable Leverage
Level in effect on such date. Changes in the applicable Term LIBOR Rate Margin
will occur automatically without prior notice as changes in the Applicable
Leverage Level occur. Administrative Agent will give notice promptly to Term
Borrower and Term Lenders of changes in the Term LIBOR Rate Margin.
"Term Loan" has the meaning given such term in Section 2C.1 hereof.
---------
25
"Term Loan Maturity Date" means May 5, 2006.
-----------------------
"Term Notes" has the meaning given such term in Section 2C.1 hereof.
----------
"Termination Event" means (a) the occurrence with respect to any ERISA Plan
-----------------
of (i) a reportable event described in Sections 4043(c)(5) or (6) of ERISA or
(ii) any other reportable event described in Section 4043(c) of ERISA other than
a reportable event not subject to the provision for 30-day notice to the Pension
Benefit Guaranty Corporation pursuant to a waiver by such corporation under
Section 4043(a) of ERISA, or (b) the withdrawal of any ERISA Affiliate from an
ERISA Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent
to terminate any ERISA Plan or the treatment of any ERISA Plan amendment as a
termination under Section 4041 of ERISA, or (d) the institution of proceedings
to terminate any ERISA Plan by the Pension Benefit Guaranty Corporation under
Section 4042 of ERISA, or (e) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan.
"Tribunal" means any government, any arbitration panel, any court or any
--------
governmental department, commission, board, bureau, agency or instrumentality of
the United States of America, the Dominion of Canada, or any state, province,
commonwealth, nation, territory, possession, county, parish, town, township,
village or municipality, whether now or hereafter constituted or existing.
"Type" means, with respect to any Loans, the characterization of such Loans
----
as US Base Rate Loans, Canadian Revolver Prime Rate Loans, US LIBOR Loans, or
BAs.
"US Base Rate" means the higher of (i) the variable per annum rate of
------------
interest so designated from time to time by Administrative Agent as its "prime
rate", or (ii) the Federal Funds Rate plus one-half percent (0.5%) per annum.
The "prime rate" is a reference rate and does not necessarily represent the
lowest or best rate being charged to any customer. Changes in the US Base Rate
resulting from changes in the "prime rate" shall take place immediately without
notice or demand of any kind.
"US Base Rate Loan" means a US Loan or Term Loan which does not bear
-----------------
interest at a rate based upon the US LIBOR Rate.
"US Base Rate Margin" means the percent per annum set forth on the Pricing
-------------------
Grid as the "US Base Rate Margin" based on the Applicable Leverage Level in
effect on such date. Changes in the applicable US 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 US
Lenders of changes in the US Base Rate Margin.
"US Borrower" means Plains Marketing, L.P., a Delaware limited partnership.
-----------
26
"US Business Day" means any day, other than a Saturday, Sunday or day which
---------------
shall be in the Commonwealth of Massachusetts a legal holiday or day on which
banking institutions are required or authorized to close. Any Business Day in
any way relating to US LIBOR Loans (such as the day on which an Interest Period
begins or ends) must also be a day on which commercial banks settle payments in
London.
"US Commitment" means $500,000,000. Each US Lender's US Commitment shall
-------------
be the amount set forth on the Lender Schedule.
"US Commitment Fee Rate" means, on any day, the rate per annum set forth on
----------------------
the Pricing Grid as the "US Commitment Fee Rate" based on the Applicable
Leverage Level on such date. Changes in the applicable US Commitment Fee Rate
will occur automatically without prior notice as changes in the Applicable
Leverage Level occur. Administrative Agent will give notice promptly to US
Borrower and US Lenders of changes in the US Commitment Fee Rate.
"US Commitment Period" means the period from and including the date hereof
--------------------
until the US Maturity Date (or, if earlier, the day on which the obligation of
US Lenders to make US hereunder and the obligation of US LC Issuer to issue US
Letters of Credit hereunder has been terminated or the day on which any of the
US Notes first becomes due and payable in full).
"US Facility Usage" means, at the time in question, the aggregate amount of
-----------------
US Loans and US LC Obligations outstanding at such time.
"US LC Collateral" has the meaning given such term in Section 2A.13(a).
----------------
"US LC Issuer" means Fleet National Bank, in its capacity as the issuer of
------------
US Letters of Credit hereunder, and its successors in such capacity.
Administrative Agent may, with the consent of Borrower and the US Lender in
question, appoint any US Lender hereunder as a US LC Issuer in place of or in
addition to Fleet National Bank.
"US LC Obligations" means, at the time in question, the sum of all Matured
-----------------
US LC Obligations plus the maximum amounts which US LC Issuer might then or
thereafter be called upon to advance under all US Letters of Credit then
outstanding.
"US Lender Parties" means Administrative Agent, US LC Issuer, US Lenders,
-----------------
and Term Lenders.
"US Lenders" means each signatory hereto designated as a US Lender, and the
----------
successors of each such party as holder of a US Note.
"US Letter of Credit" means any letter of credit issued by US LC Issuer
-------------------
hereunder at the application of US Borrower.
27
"US Letter of Credit Fee Rate" means, on any day, the rate per annum set
----------------------------
forth on the Pricing Grid as the "US LC Fee Rate" based on the Applicable
Leverage Level on such date. Changes in the applicable US Letter of Credit Fee
Rate will occur automatically without prior notice as changes in the Applicable
Leverage Level occur. Administrative Agent will give notice promptly to US
Borrower and US Lenders of changes in the US Letter of Credit Fee Rate.
"US LIBOR Loan" means a US Loan that bears interest at a rate based upon
-------------
the US LIBOR Rate.
"US LIBOR Rate" means, as applicable to any US LIBOR Loan or Term 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
or Term 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 or Term 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 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 or Term 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 or Term 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
28
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 or Term LIBOR Loans. The US
LIBOR Rate for any US LIBOR Loan or Term LIBOR Loan shall change whenever the
Reserve Percentage changes.
"US LIBOR Rate Margin" means the percent per annum set forth on the Pricing
--------------------
Grid as the "US LIBOR Rate Margin" based on the Applicable Leverage Level in
effect on such date. Changes in the applicable US 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 US
Lenders of changes in the US LIBOR Rate Margin.
"US Loans" has the meaning given such term in Section 2A.1 hereof.
--------
"US Maturity Date" means April 30, 2005.
----------------
"US Notes" has the meaning given such term in Section 2A.1 hereof.
--------
"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, or the Term 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.
"Wholly Owned Subsidiary" means any Subsidiary of a Person, all of the
-----------------------
issued and outstanding stock, limited liability company membership interests, or
partnership interests of which (including all rights or options to acquire such
stock or interests) are directly or indirectly (through one or more
Subsidiaries) owned by such Person, excluding any general partner interests
owned, directly or indirectly, by General Partner in any such Subsidiary that is
a partnership, in each case such general partner interests not to exceed two
percent (2%) of the aggregate ownership interests of any such partnership and
directors' qualifying shares if applicable.
"Working Capital Borrowings" has the meaning given to such term in Section
--------------------------
2A.2(c) hereof.
Section 1.2. Exhibits and Schedules; Additional Definitions. All
----------------------------------------------
Exhibits and Schedules attached to this Agreement are a part hereof for all
purposes. Reference is hereby made to the Security Schedule for the meaning of
certain terms defined therein and used but not defined herein, which definitions
are incorporated herein by reference.
Section 1.3. Amendment of Defined Instruments. Unless the context
--------------------------------
otherwise requires or unless otherwise provided herein the terms defined in this
Agreement which refer to a
29
particular agreement, instrument or document also refer to and include all
renewals, extensions, modifications, amendments and restatements of such
agreement, instrument or document, provided that nothing contained in this
section shall be construed to authorize any such renewal, extension,
modification, amendment or restatement. All references to the term "Marketing
Credit Agreement" shall be deemed to be references to such agreement as such
agreement is executed and delivered by the parties thereto on the date hereof.
Section 1.4. References and Titles. All references in this Agreement to
---------------------
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement," "this instrument," "herein," "hereof," "hereby," "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The phrases "this section"
and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
Section 1.5. Calculations and Determinations. All calculations under the
-------------------------------
Loan Documents of interest chargeable with respect to LIBOR Loans and of fees
shall be made on the basis of actual days elapsed (including the first day but
excluding the last) and a year of 360 days. All other calculations of interest
made under the Loan Documents shall be made on the basis of actual days elapsed
(including the first day but excluding the last) and a year of 365 or 366 days,
as appropriate. Each determination by a Lender Party of amounts to be paid
under Article III or any other matters which are to be determined hereunder by a
Lender Party (such as any US LIBOR Rate, Business Day, Interest Period, or
Reserve Percentage) shall, in the absence of manifest error, be conclusive and
binding. Unless otherwise expressly provided herein or unless Majority Lenders
otherwise consent all financial statements and reports furnished to any Lender
Party hereunder shall be prepared and all financial computations and
determinations pursuant hereto shall be made in accordance with GAAP.
ARTICLE IIA - The US Loans and US Letters of Credit
-------------------------------------
Section 2A.1. Commitments to Lend; US Notes. Subject to the terms and
-----------------------------
conditions hereof, each US Lender agrees to make loans to US Borrower (herein
called such US Lender's "US Loans") upon US Borrower's request from time to time
--------
during the US Commitment Period, provided that (a) subject to Sections 3.3, 3.4
and 3.6, all US Lenders are requested to make US Loans of the same Type in
accordance with their respective Percentage Shares and as part of the same
Borrowing, (b) after giving effect to such US Loans, the US Facility Usage does
not exceed the US Commitment determined as of the date on which the requested US
Loans are to be made, and (c) after giving effect to such US Loans the US Loans
by each US Lender plus the existing US LC Obligations of such US Lender does not
exceed such US Lender's Commitment. The
30
aggregate amount of all US Loans in any Borrowing must be equal to $2,000,000 or
any higher integral multiple of $250,000. The obligation of US Borrower to repay
to each US Lender the aggregate amount of all US Loans made by such US Lender to
US Borrower, together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called such US Lender's "US Note")
-------
made by US Borrower payable to the order of such US Lender in the form of
Exhibit A-1 with appropriate insertions. The amount of principal owing on any US
Lender's US Note at any given time shall be the aggregate amount of all US Loans
theretofore made by such US Lender minus all payments of principal theretofore
received by such US Lender on such US Note. Interest on each US Note shall
accrue and be due and payable as provided herein and therein. Each US Note shall
be due and payable as provided herein and therein, and shall be due and payable
in full on the US Maturity Date. Subject to the terms and conditions of this
Agreement, US Borrower may borrow, repay, and reborrow under this Section 2A.1.
US Borrower may have no more than seven Borrowings of LIBOR Loans outstanding at
any time. All payments of principal and interest on the US Loans shall be made
in Dollars.
Section 2A.2. Requests for US Loans. US Borrower must give to
---------------------
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of any requested Borrowing of US Loans to be funded by US Lenders.
Each such notice constitutes a "Borrowing Notice" hereunder and must:
(a) specify (i) the aggregate amount of any such Borrowing of new US
Base Rate Loans and the date on which such US Base Rate Loans are to be
advanced, or (ii) the aggregate amount of any such Borrowing of new US
LIBOR Loans, the date on which such US LIBOR Loans are to be advanced
(which shall be the first day of the Interest Period which is to apply
thereto), and the length of the applicable Interest Period; and
(b) be received by Administrative Agent not later than 11:00 a.m.,
Boston, Massachusetts time, on (i) the day on which any such US Base Rate
Loans are to be made, or (ii) the third Business Day preceding the day on
which any such US LIBOR Loans are to be made.
(c) If any requested Borrowing of US Loans or portion thereof is to
be utilized by US Borrower exclusively for working capital purposes (such
Borrowing or such portion being called a "Working Capital Borrowing"), US
Borrower shall specify in the Borrowing Notice that such Borrowing or such
portion is a Working Capital Borrowing. In addition, any repayment of a US
Loan that is intended as a repayment of all or any part of the outstanding
amount of one or more Working Capital Borrowings shall be so identified to
the Administrative Agent at the time of such repayment.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B-1, 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 Borrowing
Notice, Administrative Agent shall give each US Lender prompt
31
notice of the terms thereof. If all conditions precedent to such new US Loans
have been met, each US Lender will on the date requested promptly remit to
Administrative Agent at Administrative Agent's office in Boston, Massachusetts
the amount of such US Lender's new US Loan in immediately available funds, and
upon receipt of such funds, unless to its actual knowledge any conditions
precedent to such US Loans have been neither met nor waived as provided herein,
Administrative Agent shall promptly make such US Loans available to US Borrower.
Unless Administrative Agent shall have received prompt notice from a US Lender
that such US Lender will not make available to Administrative Agent such US
Lender's new US Loan, Administrative Agent may in its discretion assume that
such US Lender has made such US Loan available to Administrative Agent in
accordance with this section, and Administrative Agent may if it chooses, in
reliance upon such assumption, make such US Loan available to US Borrower. If
and to the extent such US Lender shall not so make its new US Loan available to
Administrative Agent, such US Lender and US Borrower severally agree to pay or
repay to Administrative Agent within three days after demand the amount of such
US Loan together with interest thereon, for each day from the date such amount
was made available to US Borrower until the date such amount is paid or repaid
to Administrative Agent, with interest at (i) the Federal Funds Rate, if such US
Lender is making such payment and (ii) the interest rate applicable at the time
to the other new US Loans made on such date, if US Borrower is making such
repayment. If neither such US Lender nor US Borrower pays or repays to
Administrative Agent such amount within such three-day period, Administrative
Agent shall be entitled to recover from US Borrower, on demand in lieu of the
interest provided for in the preceding sentence, interest thereon at the Default
Rate, calculated from the date such amount was made available to US Borrower.
The failure of any US Lender to make any new US Loan to be made by it hereunder
shall not relieve any other US Lender of its obligation hereunder, if any, to
make its new US Loan, but no US Lender shall be responsible for the failure of
any other US Lender to make any new Loan to be made by such other US Lender. All
Borrowings of US Loans shall be advanced to US Borrower in Dollars.
Section 2A.3. Continuations and Conversions of Existing US Loans. US
--------------------------------------------------
Borrower may make the following elections with respect to US Loans already
outstanding: to Convert, in whole or in part, US Base Rate Loans to US LIBOR
Loans, to Convert, in whole or in part, US LIBOR Loans to US Base Rate Loans on
the last day of the Interest Period applicable thereto, and to Continue, in
whole or in part, US 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 elections, US Borrower may combine existing US Loans
made pursuant to separate Borrowings into one new Borrowing or divide existing
US Loans made pursuant to one Borrowing into separate new Borrowings, provided
that US Borrower may have no more than seven Borrowings of US 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 US 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 US Loans which are to be Continued or
Converted;
32
(b) specify (i) the aggregate amount of any Borrowing of US Base Rate
Loans into which such existing US 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 US LIBOR Loans into which such
existing US 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 US 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 US Base Rate Loans is to occur, or (ii) the third Business
Day preceding the day on which any such Continuation or Conversion to US
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-1, 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 US
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 US Loans into
US LIBOR Loans or Continue existing US Loans as US LIBOR Loans beyond the
expiration of their respective and corresponding Interest Period then in effect.
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 US LIBOR Loans at least three days prior to the end of the
Interest Period applicable thereto, such US LIBOR Loans, to the extent not
prepaid at the end of such Interest Period, shall automatically be Converted
into US Base Rate Loans at the end of such Interest Period. No new funds shall
be repaid by US Borrower or advanced by any US Lender in connection with any
Continuation or Conversion of existing US 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
the interest rate applicable to already outstanding Loans.
Section 2A.4. Use of Proceeds. US Borrower shall use (i) all US Loans
---------------
designated as Working Capital Borrowings pursuant to Section 2A.2(c) to provide
working capital (including, without limitation, to make distributions to the
partners of Restricted Persons), and (ii) all US Loans not designated as Working
Capital Borrowings pursuant to Section 2A.2(c) to (a) refinance all outstanding
indebtedness under the Existing Agreement, and (b) finance capital expenditures
of any Restricted Person, pay reimbursement obligations of US Letters of Credit,
provide working capital for operations and for other general business purposes,
including acquisitions, but not to pay distributions to partners of Restricted
Persons. US Borrower shall use all US Letters of Credit for its and its
Subsidiaries' general corporate purposes (but not to pay distributions to
partners of Restricted Persons) including in relation to the purchase or
exchange by US Borrower of Petroleum Products. In no event shall the funds from
any US Loan or any US Letter of Credit be used directly or indirectly by any
Person for personal, family, household
33
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 US Borrower is not engaged principally, or as one of US
Borrower's important activities, in the business of extending credit to others
for the purpose of purchasing or carrying such margin stock.
Section 2A.5. Interest Rates and Fees.
-----------------------
(a) Interest Rates. Each US Loan shall bear interest as follows: (i)
--------------
unless the Default Rate shall apply, (A) each US Base Rate Loan shall bear
interest on each day outstanding at the US Base Rate plus the US Base Rate
Margin in effect on such day, and (B) each US LIBOR Loan shall bear interest on
each day during the related Interest Period at the related US LIBOR Rate plus
the US LIBOR Rate Margin in effect on such day, and (ii) during a Default Rate
Period, all US 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 US 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, US Base Rate
Margin, or the US LIBOR Rate Margin changes. In no event shall the interest
rate on any US Loan exceed the Highest Lawful Rate.
(b) Commitment Fees. In consideration of each US Lender's commitment to
---------------
make US Loans, US Borrower will pay to Administrative Agent for the account of
each US Lender a commitment fee determined on a daily basis equal to the US
Commitment Fee Rate in effect on such day times such US Lender's Percentage
Share of the unused portion of the US Commitment on each day during the US
Commitment Period, determined for each such day by deducting from the amount of
the US Commitment at the end of such day the US Facility Usage. This commitment
fee shall be due and payable in arrears on the last day of each Fiscal Quarter
and at the end of the US Commitment Period. US Borrower shall have the right
from time to time to permanently reduce the US Commitment, provided that (i)
notice of such reduction is given not less than 2 Business Days prior to such
reduction, (ii) the resulting US Commitment is not less than the US Facility
Usage and (iii) each partial reduction shall be in an amount at least equal to
$500,000 and in multiples of $100,000 in excess thereof.
(c) Administrative Agent's Fees. In addition to all other amounts due to
---------------------------
Administrative Agent under the Loan Documents, US Borrower will pay fees to
Administrative Agent as described in a letter agreement of even date herewith
between Administrative Agent and US Borrower.
Section 2A.6. Optional Prepayments. US Borrower may, upon three Business
--------------------
Days' notice, as to US LIBOR Loans, or one Business Day's notice, as to US Base
Rate Loans, to Administrative Agent (and Administrative Agent will promptly give
notice to the other US
34
Lenders) from time to time and without premium or penalty prepay the US Loans,
in whole or in part, so long as the aggregate amounts of all partial prepayments
of principal on the US Loans equals $1,000,000 or any higher integral multiple
of $250,000, and so long as US Borrower does not make any prepayments which
would reduce the unpaid principal balance of the US Loans to less than $100,000
without first either (i) terminating this Agreement or (ii) providing assurance
satisfactory to Administrative Agent in its discretion that US Lenders' legal
rights under the Loan Documents are in no way affected by such reduction. Upon
receipt of any such notice, Administrative Agent shall give each US Lender
prompt notice of the terms thereof. Each prepayment of principal of a US Loan
under this section shall be accompanied by all interest then accrued and unpaid
on the principal so prepaid. Any principal or interest prepaid pursuant to this
section 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 2A.7. Mandatory Prepayments.
---------------------
(a) Without limiting the requirements of Section 7.5 hereof regarding the
consent of Majority US Lenders to sales of property by Restricted Persons which
are not permitted by Section 7.5, the proceeds of any sale of property (net of
all reasonable costs and expenses, but excluding proceeds consisting of tangible
property to be used in the business of Restricted Persons) by any Restricted
Person (other than a sale of property permitted under Section 7.5 hereof) shall
be placed in a collateral account under the control of Administrative Agent in a
manner satisfactory to Administrative Agent immediately upon such Restricted
Person's receipt of such proceeds and maintained therein for a period of ninety
(90) days following the date of receipt thereof in cash (in this Section 2A.7(a)
referred to as the "Collateral Period"). If any consideration consists of an
-----------------
instrument or security, the Collateral Period shall, with respect to each amount
of cash received in respect thereof, continue until ninety (90) days following
such Restricted Person's receipt of such cash unless, pursuant to the following
sentence, an approved investment included such cash; any cash in a collateral
account may be invested in Cash Equivalents designated by US Borrower. During
each Collateral Period, US Borrower may propose to invest such proceeds in other
property subject to the approval of Majority US Lenders, and shall thereafter
invest such proceeds in such property so approved by Majority US Lenders. At
the end of each Collateral Period or, if an investment is so proposed and
approved during such Collateral Period, within one hundred-eighty (180) days
after such proposed investment has been so approved by Majority US Lenders, any
such proceeds which have not been so invested by US Borrower shall be applied to
the reduction of the outstanding principal balance of the US Loans at such time,
and the US Commitment shall be reduced by an amount equal to the prepayment
applied to the US Loans.
(b) If at any time the US Facility Usage exceeds the US Commitment
(whether due to a reduction in the US Commitment in accordance with this
Agreement, or otherwise), US Borrower shall immediately upon demand prepay the
principal of the US Loans in an amount at least equal to such excess. Each
prepayment of principal under this section shall be accompanied by all interest
then accrued and unpaid on the principal so prepaid. Any principal or interest
prepaid pursuant to this section 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.
35
Section 2A.8. US Letters of Credit. Subject to the terms and conditions
--------------------
hereof, US Borrower may during the US Commitment Period request US LC Issuer to
issue, amend, or extend the expiration date of, one or more US Letters of
Credit, provided that, after taking such US Letter of Credit into account:
(a) the US Facility Usage does not exceed the US Commitment at such
time;
(b) the aggregate amount of US LC Obligations at such time does not
exceed $10,000,000;
(c) the expiration date of such US Letter of Credit is prior to the
earlier of (i) one (1) year after the date of issuance of such US Letter of
Credit or (ii) the end of the US Commitment Period;
(d) such US Letter of Credit is to be used for general corporate
purposes of US Borrower or any of its Subsidiaries and is not directly or
indirectly used to assure payment of or otherwise support any Indebtedness
of any Person, except Indebtedness of a Restricted Person;
(e) the issuance of such US Letter of Credit will be in compliance
with all applicable governmental restrictions, policies, and guidelines and
will not subject US LC Issuer to any cost which is not reimbursable under
Article III;
(f) the form and terms of such US Letter of Credit are acceptable to
US LC Issuer in its sole and absolute discretion; and
(g) all other conditions in this Agreement to the issuance of such US
Letter of Credit have been satisfied.
US LC Issuer will honor any such request if the foregoing conditions (a) through
(g) (in the following Section 2A.9 called the "US LC Conditions") have been met
----------------
as of the date of issuance, amendment, or extension of the expiration, of such
US Letter of Credit.
Section 2A.9. Requesting US Letters of Credit. US Borrower must make
-------------------------------
written application for any US Letter of Credit at least two Business Days
before the date on which US Borrower desires for US LC Issuer to issue such US
Letter of Credit. By making any such written application, unless otherwise
expressly stated therein, US Borrower shall be deemed to have represented and
warranted that the US LC Conditions described in Section 2A.8 will be met as of
the date of issuance of such US Letter of Credit. Each such written application
for a US Letter of Credit must be made in writing in the form and substance of
Exhibit G-1, the terms and provisions of which are hereby incorporated herein by
reference (or in such other form as may mutually be agreed upon by US LC Issuer
and US Borrower). If all US LC Conditions for a US Letter of Credit have been
met as described in Section 2A.8 on any Business Day before 11:00 a.m., Boston,
Massachusetts time, US LC Issuer will issue such US Letter of Credit on the same
Business Day at US LC Issuer's office in Boston, Massachusetts. If the US LC
Conditions are
36
met as described in Section 2A.8 on any Business Day on or after 11:00 a.m.,
Boston, Massachusetts time, US LC Issuer will issue such US Letter of Credit on
the next succeeding Business Day at US LC Issuer's office in Boston,
Massachusetts. If any provisions of any US LC Application conflict with any
provisions of this Agreement, the provisions of this Agreement shall govern and
control.
Section 2A.10. Reimbursement and Participations.
--------------------------------
(a) Reimbursement by US Borrower. Each Matured US LC Obligation shall
----------------------------
constitute a loan by US LC Issuer to US Borrower. US Borrower promises to pay
to US LC Issuer, or to US LC Issuer's order, on demand, the full amount of each
Matured US LC Obligation, together with interest thereon (i) at the US Base
Rate plus the US Base Rate Margin to and including the second Business Day after
the Matured US LC Obligation is incurred and (ii) at the Default Rate on each
day thereafter.
(b) US Letter of Credit Advances. If the beneficiary of any US Letter of
----------------------------
Credit makes a draft or other demand for payment thereunder then US Borrower
may, during the interval between the making thereof and the honoring thereof by
US LC Issuer, request US Lenders to make US Loans to US Borrower in the amount
of such draft or demand, which US Loans shall be made concurrently with US LC
Issuer's payment of such draft or demand and shall be immediately used by US LC
Issuer to repay the amount of the resulting Matured US LC Obligation. Such a
request by US Borrower shall be made in compliance with all of the provisions
hereof, provided that for the purposes of the first sentence of Section 2A.1,
the amount of such US Loans shall be considered, but the amount of the Matured
US LC Obligation to be concurrently paid by such US Loans shall not be
considered.
(c) Participation by US Lenders. US LC Issuer irrevocably agrees to grant
---------------------------
and hereby grants to each US Lender, and -- to induce US LC Issuer to issue US
Letters of Credit hereunder -- each US Lender irrevocably agrees to accept and
purchase and hereby accepts and purchases from US LC Issuer, on the terms and
conditions hereinafter stated and for such US Lender's own account and risk an
undivided interest equal to such US Lender's Percentage Share of US LC Issuer's
obligations and rights under each US Letter of Credit issued hereunder and the
amount of each Matured US LC Obligation paid by US LC Issuer thereunder. Each
US Lender unconditionally and irrevocably agrees with US LC Issuer that, if a
Matured US LC Obligation is paid under any US Letter of Credit for which US LC
Issuer is not reimbursed in full by US Borrower in accordance with the terms of
this Agreement and the related US LC Application (including any reimbursement by
means of concurrent US Loans or by the application of US LC Collateral), such US
Lender shall (in all circumstances and without set-off or counterclaim) pay to
US LC Issuer on demand, in immediately available funds at US LC Issuer's address
for notices hereunder, such US Lender's Percentage Share of such Matured US LC
Obligation (or any portion thereof which has not been reimbursed by US
Borrower). Each US Lender's obligation to pay US LC Issuer pursuant to the
terms of this subsection is irrevocable and unconditional. If any amount
required to be paid by any US Lender to US LC Issuer pursuant to this subsection
is paid by such US Lender to US LC Issuer within three Business Days after the
date such payment is due, US LC Issuer shall in addition to such amount be
entitled to recover from such US
37
Lender, on demand, interest thereon calculated from such due date at the Federal
Funds Rate. If any amount required to be paid by any US Lender to US LC Issuer
pursuant to this subsection is not paid by such US Lender to US LC Issuer within
three Business Days after the date such payment is due, US LC Issuer shall in
addition to such amount be entitled to recover from such US Lender, on demand,
interest thereon calculated from such due date at the US Base Rate plus the US
Base Rate Margin.
(d) Distributions to Participants. Whenever US LC Issuer has in
-----------------------------
accordance with this section received from any US Lender payment of such US
Lender's Percentage Share of any Matured US LC Obligation, if US LC Issuer
thereafter receives any payment of such Matured US LC Obligation or any payment
of interest thereon (whether directly from US Borrower or by application of US
LC Collateral or otherwise, and excluding only interest for any period prior to
US LC Issuer's demand that such US Lender make such payment of its Percentage
Share), US LC Issuer will distribute to such US Lender its Percentage Share of
the amounts so received by US LC Issuer; provided, however, that if any such
-------- -------
payment received by US LC Issuer must thereafter be returned by US LC Issuer,
such US Lender shall return to US LC Issuer the portion thereof which US LC
Issuer has previously distributed to it.
(e) Calculations. A written advice setting forth in reasonable detail the
------------
amounts owing under this section, submitted by US LC Issuer to US Borrower or
any US Lender from time to time, shall be conclusive, absent manifest error, as
to the amounts thereof.
Section 2A.11. US Letter of Credit Fees. In consideration of US LC
------------------------
Issuer's issuance of any US Letter of Credit, US Borrower agrees to pay (i) to
Administrative Agent for the account of each US Lender in proportion to its
Percentage Share, a US Letter of Credit fee equal to the US Letter of Credit Fee
Rate applicable each day times the face amount of such US Letter of Credit and
(ii) to such US LC Issuer for its own account, a letter of credit fronting fee
at a rate equal to one-eighth percent (.125%) per annum times the face amount of
such US Letter of Credit. Each such fee will be calculated on the face amount
of each US Letter of Credit outstanding on each day at the above applicable
rates and will be payable quarterly in arrears on the last day of each March,
June, September and December. In addition, US Borrower will pay to US LC Issuer
a minimum administrative issuance fee and such other fees and charges
customarily charged by the US LC Issuer in respect of any issuance, amendment or
negotiation of any US Letter of Credit in accordance with the US LC Issuer's
published schedule of such charges effective as of the date of such amendment or
negotiation.
Section 2A.12. No Duty to Inquire.
------------------
(a) Drafts and Demands. US LC Issuer is authorized and instructed to
------------------
accept and pay drafts and demands for payment under any US Letter of Credit
without requiring, and without responsibility for, any determination as to the
existence of any event giving rise to said draft, either at the time of
acceptance or payment or thereafter. US LC Issuer is under no duty to determine
the proper identity of anyone presenting such a draft or making such a demand
(whether by tested telex or otherwise) as the officer, representative or agent
of any beneficiary under any US Letter of Credit, and payment by US LC Issuer to
any such beneficiary when
38
requested by any such purported officer, representative or agent is hereby
authorized and approved. US Borrower releases each Lender Party from, and agrees
to hold each Lender Party harmless and indemnified against, any liability or
claim in connection with or arising out of the subject matter of this section,
which indemnity shall apply whether or not any such liability or claim is in any
way or to any extent caused, in whole or in part, by any negligent act or
omission of any kind by any Lender Party, provided only that no Lender Party
shall be entitled to indemnification for that portion, if any, of any liability
or claim which is proximately caused by its own individual gross negligence or
willful misconduct, as determined in a final judgment.
(b) Extension of Maturity. If the maturity of any US Letter of Credit is
---------------------
extended by its terms or by Law or governmental action, if any extension of the
maturity or time for presentation of drafts or any other modification of the
terms of any US Letter of Credit is made at the request of US Borrower, or if
the amount of any US Letter of Credit is increased at the request of US
Borrower, this Agreement shall be binding upon all Restricted Persons with
respect to such US Letter of Credit as so extended, increased or otherwise
modified, with respect to drafts and property covered thereby, and with respect
to any action taken by US LC Issuer, US LC Issuer's correspondents, or any US
Lender Party in accordance with such extension, increase or other modification.
(c) Transferees of US Letters of Credit. If any US Letter of Credit
-----------------------------------
provides that it is transferable, US LC Issuer shall have no duty to determine
the proper identity of anyone appearing as transferee of such US Letter of
Credit, nor shall US LC Issuer be charged with responsibility of any nature or
character for the validity or correctness of any transfer or successive
transfers, and payment by US LC Issuer to any purported transferee or
transferees as determined by US LC Issuer is hereby authorized and approved, and
US Borrower releases each US Lender Party from, and agrees to hold each US
Lender Party harmless and indemnified against, any liability or claim in
connection with or arising out of the foregoing, which indemnity shall apply
whether or not any such liability or claim is in any way or to any extent
caused, in whole or in part, by any negligent act or omission of any kind by any
Lender Party, provided only that no Lender Party shall be entitled to
indemnification for that portion, if any, of any liability or claim which is
proximately caused by its own individual gross negligence or willful misconduct,
as determined in a final judgment.
Section 2A.13. US LC Collateral.
----------------
(a) US LC Obligations in Excess of Commitment. If, after the making of all
-----------------------------------------
mandatory prepayments required under Section 2A.7, the outstanding US LC
Obligations will exceed the US Commitment, then in addition to prepayment of the
entire principal balance of the US Loans US Borrower will immediately pay to US
LC Issuer an amount equal to such excess. US LC Issuer will hold such amount as
collateral security for the remaining US LC Obligations (all such amounts held
as collateral security for US LC Obligations being herein collectively called
"US LC Collateral") and the other Obligations, and such collateral may be
----------------
applied from
39
time to time to any Matured US LC Obligations or any other Obligations which are
due and payable. Neither this subsection nor the following subsection shall,
however, limit or impair any rights which US LC Issuer may have under any other
document or agreement relating to any US Letter of Credit, US LC Collateral or
US LC Obligation, including any US LC Application, or any rights which any US
Lender Party may have to otherwise apply any payments by US Borrower and any US
LC Collateral under Section 3A.1.
(b) Acceleration of US LC Obligations. If the Obligations or any part
---------------------------------
thereof become immediately due and payable pursuant to Section 8.1 then, unless
all US Lenders otherwise specifically elect to the contrary (which election may
thereafter be retracted by any US Lender at any time), all US LC Obligations
shall become immediately due and payable without regard to whether or not actual
drawings or payments on the US Letters of Credit have occurred, and US Borrower
shall be obligated to pay to US LC Issuer immediately an amount equal to the
aggregate US LC Obligations which are then outstanding to be held as US LC
Collateral.
(c) Investment of US LC Collateral. Pending application thereof, all US
------------------------------
LC Collateral shall be invested by US LC Issuer in such Cash Equivalents as US
LC Issuer may choose in its sole discretion. All interest on (and other proceeds
of) such Investments shall be reinvested or applied to Matured US LC Obligations
or the US Loans which are due and payable. When all Obligations have been
satisfied in full, including all US LC Obligations, all US Letters of Credit
have expired or been terminated, and all of US Borrower's reimbursement
obligations in connection therewith have been satisfied in full, US LC Issuer
shall release any remaining US LC Collateral. US Borrower hereby assigns and
grants to US LC Issuer for the benefit of US Lenders a continuing security
interest in all US LC Collateral paid by it to US LC Issuer, all Investments
purchased with such US LC Collateral, and all proceeds thereof to secure its
Matured US LC Obligations and its Obligations under this Agreement, each US
Note, and the other Loan Documents, and US Borrower agrees that such US LC
Collateral, Investments and proceeds shall be subject to all of the terms and
conditions of the Security Documents. US Borrower further agrees that US LC
Issuer shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code as adopted in the State of New York with respect to such
security interest and that an Event of Default under this Agreement shall
constitute a default for purposes of such security interest.
(d) Payment of US LC Collateral. When US Borrower is required to provide
---------------------------
US LC Collateral for any reason and fails to do so on the day when required, US
LC Issuer or Administrative Agent may without prior notice to US Borrower or any
other Restricted Person provide such US LC Collateral (whether by application of
proceeds of other Collateral, by transfers from other accounts maintained with
US LC Issuer, or otherwise) using any available funds of US Borrower or any
other Person also liable to make such payments, and US LC Issuer or
Administrative Agent will give notice thereof to US Borrower promptly after such
application or transfer. Any such amounts which are required to be provided as
US LC Collateral and which are not provided on the date required shall, for
purposes of each Security Document, be considered past due Obligations owing
hereunder, and US LC Issuer is hereby authorized to exercise its respective
rights under each Security Document to obtain such amounts.
40
Section 2A.14. Hedging Contracts. All Hedging Contracts permitted
-----------------
hereunder entered into with any one or more US Lenders or their Affiliates shall
be deemed to be Obligations and be secured by all Collateral; subject, however,
to the provisions of the Intercreditor Agreement.
ARTICLE IIB - The Canadian Revolver Advances and Canadian Letters of Credit
-------------------------------------------------------------
Section 2B.1. Canadian Revolver Advances. Subject to the terms and
--------------------------
conditions hereof, each Canadian Revolver Lender agrees to extend credit to
Canadian Revolver Borrower by advancing funds to Canadian Revolver Borrower
specified in a Borrowing Notice (herein called such Canadian Revolver Lender's
"Canadian Revolver Loans") and accepting and purchasing drafts of Bankers'
-----------------------
Acceptances issued under this Agreement by Canadian Revolver Borrower specified
in a Borrowing Notice (herein called such Canadian Revolver Lender's "Bankers'
--------
Acceptances"; each Canadian Revolver Lender's Canadian Revolving Loans and
-----------
Bankers' Acceptances are herein collectively called such Canadian Revolver
Lender's "Canadian Revolver Advances") upon Canadian Revolver Borrower's request
--------------------------
from time to time during the Canadian Commitment Period, provided that (a)
subject to Sections 3.3, 3.4, and 3.6, all Canadian Revolver Lenders are
requested to make Canadian Revolver Advances of the same Type in accordance with
their respective Percentage Shares and as part of the same Borrowing, (b) after
giving effect to such Canadian Revolver Advances, the Canadian Revolver Facility
Usage does not exceed the Canadian Revolver Commitment determined as of the date
on which the requested Canadian Revolver Advances are to be made, and (c) after
giving effect to such Canadian Revolver Advances the Canadian Revolver Advances
by each Canadian Revolver Lender plus the existing Canadian LC Obligations of
such Canadian Revolver Lender does not exceed such Canadian Revolver Lender's
Canadian Revolver Commitment. The aggregate amount of all Canadian Revolver
Loans in any Borrowing must equal to C$500,000 or any higher integral multiple
of C$100,000. The obligation of Canadian Revolver Borrower to repay to each
Canadian Revolver Lender the aggregate amount of all Canadian Revolver Loans
made by such Canadian Revolver Lender to Canadian Revolver Borrower, together
with interest accruing in connection therewith, shall be evidenced by a single
promissory note (herein called such Canadian Revolver Lender's "Canadian
--------
Revolver Note") made by Canadian Revolver Borrower payable to the order of such
-------------
Canadian Revolver Lender in the form of Exhibit A-2 with appropriate
insertions. The amount of principal owing on any Canadian Revolver Lender's
Canadian Revolver Note at any given time shall be the aggregate amount of all
Canadian Revolver Loans theretofore made by such Canadian Revolver Lender minus
all payments of principal theretofore received by such Canadian Revolver Lender
on such Canadian Revolver Note. Interest on each Canadian Revolver Note shall
accrue and be due and payable as provided herein and therein. Each Canadian
Revolver Lender's Canadian Revolver Note shall be due and payable as provided
herein and therein and shall be due and payable in full on the Canadian Revolver
Maturity Date. Subject to the terms and conditions of this Agreement, Canadian
Revolver Borrower may borrow, repay, and reborrow under this Section 2B.1.
Canadian Revolver Borrower may have no more than seven Borrowings of BA's
collectively outstanding at any time. All payments of principal and interest on
the Canadian Revolver Loans shall be made in the currency in which such
corresponding Canadian Revolver Loan was funded. All Canadian Revolver Loans
shall be made in Canadian Dollars, or, upon the written request of Canadian
Revolver Borrower, in Dollars.
41
Section 2B.2. Requests for New Canadian Revolver Advances. The Canadian
-------------------------------------------
Revolver Borrower must give to Canadian Administration Agent written notice (or
telephonic notice promptly confirmed in writing) of any requested Borrowing of
Canadian Revolver Loans to be funded by Canadian Revolver Lenders and any
requested Borrowing by way of Bankers' Acceptances. Each such notice
constitutes a "Borrowing Notice" hereunder and must:
(a) specify (i) the aggregate amount of any such Borrowing of new
Canadian Revolver Prime Rate Loans and the date on which such Canadian
Revolver Prime Rate Loans are to be advanced, or (ii the aggregate amount
of any such Borrowing by way of Bankers' Acceptances (subject to Section
2B.2(f)), and the date on which such Bankers' Acceptances are to be
accepted and the maturity of such Bankers' Acceptances; and
(b) be received by Canadian Administration Agent not later than 10:00
a.m., Toronto, Ontario time, on (i) the day on which any such Canadian
Revolver Prime Rate Loans are to be made, or (ii) the third Business Day
before such Bankers' Acceptances are to be issued.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B-2, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by Canadian Revolver Borrower as to the matters
which are required to be set out in such written confirmation. Upon receipt of
any such Borrowing Notice, Canadian Administration Agent shall give each
Canadian Revolver Lender prompt notice of the terms thereof. If all conditions
precedent to such new Canadian Revolver Advances have been met, each Canadian
Revolver Lender will on the date requested promptly remit to Canadian
Administration Agent at Canadian Administration Agent's office in Toronto,
Ontario the amount of such Canadian Revolver Lender's new Canadian Revolver
Advance in immediately available funds, and upon receipt of such funds, unless
to its actual knowledge any conditions precedent to such Canadian Revolver
Advances have been neither met nor waived as provided herein, Canadian
Administration Agent shall promptly make such Canadian Revolver Advances
available to Canadian Revolver Borrower or each Canadian Lender will accept
drafts of Bankers' Acceptances on the date requested in accordance with Sections
2B.1 through 2B.3. Unless Canadian Administration Agent shall have received
prompt notice from a Canadian Revolver Lender that such Canadian Revolver Lender
will not make available to Canadian Administration Agent such Canadian Revolver
Lender's new Canadian Revolver Advance, Canadian Administration Agent may in its
discretion assume that such Canadian Revolver Lender has made such Canadian
Revolver Advance available to Canadian Administration Agent in accordance with
this section, and Canadian Administration Agent may if it chooses, in reliance
upon such assumption, make such Canadian Revolver Advance available to Canadian
Revolver Borrower. If and to the extent such Canadian Revolver Lender shall not
so make its new Canadian Revolver Advance available to Canadian Administration
Agent, such Canadian Revolver Lender and Canadian Revolver Borrower severally
agree to pay or repay to Canadian Administration Agent within three days after
demand the amount of such Canadian Revolver Advance together with interest
thereon, for each day from the date such amount was made available to the
applicable Canadian Borrower until the date such amount is paid or repaid to
Canadian Administration Agent, with interest at
42
(i) the Canadian Revolver Prime Rate, if such Canadian Revolver Lender is making
such payment and (ii) the interest rate applicable at the time to the other new
Canadian Revolver Advances made on such date, if Canadian Borrower is making
such repayment. If neither such Canadian Revolver Lender nor Canadian Revolver
Borrower pays or repays to Canadian Administration Agent such amount within such
three-day period, Canadian Administration Agent shall be entitled to recover
from Canadian Revolver Borrower, on demand in lieu of the interest provided for
in the preceding sentence, interest thereon at the Default Rate, calculated from
the date such amount was made available to Canadian Revolver Borrower. The
failure of any Canadian Revolver Lender to make any new Canadian Revolver
Advance to be made by it hereunder shall not relieve any other Canadian Revolver
Lender of its obligation hereunder, if any, to make its new Canadian Revolver
Advance, but no Canadian Revolver Lender shall be responsible for the failure of
any other Canadian Revolver Lender to make any new Canadian Revolver Advance to
be made by such other Canadian Revolver Lender. All Borrowings of Canadian
Revolver Loans shall be advanced to Canadian Revolver Borrower in Canadian
Dollars, or, upon the written request of Canadian Revolver Borrower, in Dollars
in an amount equal to the Dollar Equivalent of such requested Canadian Revolver
Loan.
Section 2B.3. Continuations and Conversions of Existing Canadian Revolver
-----------------------------------------------------------
Advances. Subject to the terms of Section 2B.9 with respect to Bankers'
--------
Acceptances, Canadian Revolver Borrower may make the following elections with
respect to Canadian Revolver Advances already outstanding: (i) to Convert any
Type of Canadian Revolver Advance to any other Type of Canadian Revolver
Advance, provided that any such Conversion of a Bankers' Acceptance must be made
on the date of maturity thereof; and (ii to rollover any existing Bankers'
Acceptance by designating the new maturity date applicable thereto. In making
such elections, Canadian Revolver Borrower may combine existing Canadian
Revolver Advances made pursuant to separate Borrowings into one new Borrowing or
divide existing Canadian Revolver Advances made pursuant to one Borrowing into
separate new Borrowings, provided that Canadian Revolver Borrower may have no
more than seven Borrowings of BA's outstanding at any time. To make any such
election, Canadian Revolver Borrower must give to Canadian Administration Agent
written notice (or telephonic notice promptly confirmed in writing) of any such
Conversion or Continuation of existing Canadian Revolver Advances, with a
separate notice given for each new Borrowing. Each such notice constitutes a
"Continuation/Conversion Notice" hereunder and must:
(a) specify the existing Canadian Revolver Advances which are to be
Continued or Converted;
(b) specify (i) the aggregate amount of any Borrowing of Canadian
Revolver Prime Rate Loans into which such existing Canadian Revolver
Advances are to be Continued or Converted and the date on which such
Continuation or Conversion is to occur, or (ii) the amount of any Borrowing
of Bankers' Acceptances into which such existing Canadian Revolver Advances
are to be Continued or Converted, the date on which such Continuation or
Conversion is to occur, and the maturity of such Bankers' Acceptances; and
43
(c) be received by Canadian Administration Agent not later than 10:00
a.m., Toronto, Ontario time, on (i) the day on which any such Continuation
or Conversion to Canadian Revolver Prime Rate Loans is to occur, or (ii) on
the third Business Day preceding the day on which any such Continuation or
Conversion to Bankers' Acceptances 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 B-2, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by Canadian Revolver Borrower as to the
matters which are required to be set out in such written confirmation. Upon
receipt of any such Continuation/Conversion Notice, Canadian Revolver Agent
shall give each Canadian Revolver Lender prompt notice of the terms thereof.
Each Continuation/Conversion Notice shall be irrevocable and binding on Canadian
Revolver Borrower. During the continuance of any Default, Canadian Revolver
Borrower may not make any election to Convert existing Canadian Revolver
Advances into Bankers' Acceptances or to rollover existing Bankers' Acceptances
into new Bankers' Acceptances. If (due to the existence of a Default or for any
other reason) Canadian Revolver Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing Bankers'
Acceptances at least three days prior to the maturity of the Bankers'
Acceptance, such Bankers' Acceptances, to the extent not prepaid at the end of
such Interest Period, shall automatically be Converted into Canadian Revolver
Prime Rate Loans at the end of such Interest Period. No new funds shall be
repaid by Canadian Revolver Borrower or advanced by any Canadian Revolver Lender
in connection with any Continuation or Conversion of existing Canadian Revolver
Advances 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 the interest rate applicable to
already outstanding Loans.
Section 2B.4. Repayments of Canadian Revolver Loans.
-------------------------------------
(a) Mandatory Prepayments. Except to the extent permitted by Section
---------------------
2B.4(c), if the aggregate principal amount of the outstanding Canadian Revolver
Facility Usage ever exceeds the Canadian Revolver Commitment, Canadian Revolver
Borrower shall immediately on demand prepay the principal of the Canadian
Revolver Advances in an amount at least equal to such excess. Each prepayment
of principal under this section shall be accompanied by all interest then
accrued and unpaid on the principal so prepaid. Any principal or interest
prepaid pursuant to this section 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. No BA may be prepaid as a result of the operation of this
Section 2B.4(b); provided, however, that any such excess required to be paid
under this Section 2B.4(b) and not otherwise applicable to Canadian Revolver
Loans will be paid to Canadian Administration Agent and held in accordance with
Section 2B.11.
(b) Currency Fluctuations. Notwithstanding any other provision of this
---------------------
Agreement, Canadian Administration Agent shall have the right to calculate the
outstanding Canadian Revolver Facility Usage for all purposes including making a
determination from time to time of the available undrawn portion of the Canadian
Revolver Commitment. If following such
44
calculation, Canadian Administration Agent determines that the Canadian Revolver
Facility Usage is greater than 105% of the Canadian Revolver Commitment, then
Canadian Administration Agent shall so advise Canadian Revolver Borrower and
Canadian Revolver Borrower shall repay, on the earlier of five Business Days
after such advice and the next applicable Interest Payment Date immediately
following such advice, an amount sufficient to eliminate such excess, together
with all accrued interest on the amount so paid. No BA may be prepaid as a
result of the operation of this Section 2B.4(c); provided, however, that any
such excess required to be paid under this Section 2B.4(c) and not otherwise
applicable to Canadian Revolver Loans will be paid to Canadian Administration
Agent and held in accordance with Section 2B.11.
(c) Optional Prepayments. Canadian Revolver Borrower may, upon five
--------------------
Business Days' notice to Canadian Administration Agent (and Canadian
Administration Agent will promptly give notice to the other Canadian Revolver
Lenders) from time to time and without premium or penalty prepay the Canadian
Revolver Loans, in whole or in part, so long as the aggregate amounts of all
partial prepayments of principal on the Canadian Revolver Loans equals C$100,000
or any higher integral multiple of C$100,000. Each prepayment of principal
under this section shall be accompanied by all interest then accrued and unpaid
on the principal so prepaid. Any principal or interest prepaid pursuant to this
section 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. No
BA may be prepaid hereunder except in accordance with Section 2B.11.
Section 2B.5. Interest Rates and Fees.
-----------------------
(a) Interest Rates. Each Canadian Revolver Loan shall bear interest as
--------------
follows: (i) unless the Default Rate shall apply, each Canadian Revolver Prime
Rate Loan shall bear interest on each day outstanding at the Canadian Revolver
Prime Rate plus the Canadian Revolver Prime Rate Margin in effect on such day,
and (ii) during a Default Rate Period, all Canadian Revolver 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 Canadian
Revolver Borrower, based upon Section 8.1(i)(i), (i)(ii) or (i)(iii) exists and
the Canadian Revolver 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 Canadian Revolver Prime Rate or the Canadian Revolver
Prime Rate Margin changes. In no event shall the interest rate on any Canadian
Revolver Loan exceed the such rates as set out in or calculated pursuant to
Section 10.10.
(b) Commitment Fees. In consideration of each Canadian Revolver Lender's
---------------
commitment to make Canadian Revolver Advances, Canadian Revolver Borrower will
pay to Canadian Administration Agent for the account of each Canadian Revolver
Lender a commitment fee determined on a daily basis equal to the Canadian
Revolver Commitment Fee Rate in effect on such day times such Canadian Revolver
Lender's Percentage Share of the unused portion of the Canadian Revolver
Commitment on each day during the Canadian Commitment Period, determined for
each such day by deducting from the amount of the Canadian Revolver Commitment
at the end of such day the Canadian Revolver Facility Usage.
45
This commitment fee shall be due and payable in arrears on the last day of each
Fiscal Quarter and at the end of the Canadian Commitment Period. Canadian
Revolver Borrower shall have the right from time to time to permanently reduce
the Canadian Revolver Commitment, provided that (i) notice of such reduction is
given not less than 2 Business Days prior to such reduction, (ii) the resulting
Canadian Revolver Commitment is not less than the Canadian Revolver Facility
Usage and (iii) each partial reduction shall be in an amount at least equal to
C$500,000 and in multiples of C$100,000 in excess thereof.
(c) Stamping Fees. In consideration of each Canadian Revolver Lender's
-------------
commitment to accept or participate in Bankers' Acceptances under this
Agreement, Canadian Revolver Borrower will pay to Canadian Administration Agent
for the account of such Canadian Revolver Lender the Stamping Fee Rate
multiplied by the face amount of each Bankers' Acceptance accepted by such
Canadian Revolver Lender under this Agreement calculated for the number of days
in the term of such Bankers' Acceptance. Such fee shall be due and payable on
the date on which such Bankers' Acceptances are accepted and shall be deducted
from the Discount Proceeds paid to Canadian Revolver Borrower. Such fee shall
be non-refundable, notwithstanding any reduction in the Stamping Fee Rate during
the term of such Bankers' Acceptances.
(d) Canadian Administration Agent's Fees. In addition to all other amounts
------------------------------------
due to Canadian Administration Agent under the Loan Documents, Canadian Revolver
Borrower will pay fees to Canadian Administration Agent as described in the
agency fee agreement between Canadian Administration Agent and Canadian Revolver
Borrower.
Section 2B.6. Use of Proceeds. Canadian Revolver Borrower shall use all
---------------
Canadian Revolver Advances (i) to finance its capital expenditures, (ii to pay
reimbursement obligations of Canadian Letters of Credit, and (ii to provide
working capital for operations and for other general business purposes.
Canadian Revolver Borrower shall use all Canadian Letters of Credit for its and
its Subsidiaries' general corporate purposes (but not to pay distributions to
partners of Restricted Persons), including in relation to the purchase or
exchange by Canadian Revolver Borrower of Petroleum Products. In no event shall
the funds from any Canadian Revolver Loan, or any Canadian Letter of Credit, or
any Banker's Acceptance 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. Canadian Revolver 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.
Section 2B.7. Creation of Bankers' Acceptances. Upon receipt of a
--------------------------------
Borrowing Notice requesting a Borrowing by way of Bankers' Acceptances, and
subject to the provisions of this Agreement, each Canadian Revolver Lender shall
accept, in accordance with its Percentage Share of the requested Borrowing from
time to time such Bankers' Acceptances as Canadian Revolver Borrower shall
request provided that:
46
(a) Bankers' Acceptances shall be issued on a Business Day;
(b) each Bankers' Acceptance shall have a term of one, two, three or
six months (excluding days of grace), as selected by Canadian Revolver
Borrower in the relevant Borrowing Notice provided that each Bankers'
Acceptance shall mature on a Business Day;
(c) the face amount of each Bankers' Acceptance shall be not less
than C$500,000 and in multiples of C$100,000 for any amounts in excess
thereof; and
(d) each Bankers' Acceptance shall be in a form acceptable to the
Canadian Administration Agent.
Section 2B.8. Terms of Acceptance by the Canadian Revolver Lenders.
----------------------------------------------------
(a) Delivery and Payment. Subject to Sections 2B.3 and 2B.4 and only if a
--------------------
valid appointment pursuant to Section 2B.8(d) is not in place, Canadian Revolver
Borrower shall pre-sign and deliver to each Canadian Revolver Lender bankers'
acceptance drafts in sufficient quantity to meet Canadian Revolver Borrower's
requirements for anticipated Borrowings by way of Bankers' Acceptances.
Canadian Revolver Borrower shall, at its option, provide for payment to Canadian
Administration Agent for the benefit of Canadian Revolver Lenders of each
Bankers' Acceptance on the date on which a Bankers' Acceptance matures, either
by payment of the full face amount thereof or through utilization of a
Conversion to another Type of Borrowing in accordance with this Agreement, or
through a combination thereof. Canadian Revolver Borrower waives presentment
for payment of Bankers' Acceptances by Canadian Revolver Lenders and shall not
claim from Canadian Revolver Lenders any days of grace for the payment at
maturity of Bankers' Acceptances. Any amount owing by Canadian Revolver
Borrower in respect of any Bankers' Acceptance which is not paid in accordance
with the foregoing, shall, as and from the date on which such Bankers'
Acceptance matures, be deemed to be outstanding hereunder as a Canadian Revolver
Prime Rate Loan.
(b) No Liability. Canadian Administration Agent and Canadian Revolver
------------
Lenders shall not be liable for any damage, loss or improper use of any bankers'
acceptance draft endorsed in blank except for any loss arising by reason of
Canadian Administration Agent or a Canadian Revolver Lender failing to use the
same standard of care in the custody of such bankers' acceptance drafts as
Canadian Administration Agent or such Canadian Revolver Lender use in the
custody of their own property of a similar nature.
(c) Bankers' Acceptances Purchased by Canadian Revolver Lenders. Each
-----------------------------------------------------------
Canadian Revolver Lender shall purchase Bankers' Acceptances accepted by it for
an amount equal to the Discount Proceeds.
(d) Power of Attorney. To facilitate the procedures contemplated in this
-----------------
Agreement, Canadian Revolver Borrower appoints each Canadian Revolver Lender
from time to time as the attorney-in-fact of Canadian Revolver Borrower to
execute, endorse and deliver on behalf of
47
Canadian Revolver Borrower drafts or depository bills in the form or forms
prescribed by such Canadian Revolver Lender for Bankers' Acceptances denominated
in Canadian Dollars. Each Bankers' Acceptance executed and delivered by a
Canadian Revolver Lender on behalf of Canadian Revolver Borrower shall be as
binding upon such Canadian Revolver Borrower as if it had been executed and
delivered by a duly authorized officer of such Canadian Revolver Borrower. The
foregoing appointment shall cease to be effective, in respect of any Canadian
Revolver Lender regarding Canadian Revolver Borrower, three Business Days
following receipt by such Canadian Revolver Lender of a written notice from
Canadian Revolver Borrower revoking such appointment (which notice shall be
copied to the Canadian Administration Agent); provided that any such revocation
shall not affect Bankers' Acceptances previously executed and delivered by such
Canadian Revolver Lender pursuant to such appointment.
(e) Pro-Rata Treatment of Canadian Revolver Advances.
------------------------------------------------
(i) Each Canadian Revolver Advance shall be made available by each
Canadian Revolver Lender and all repayments and reductions in respect
thereof shall be made and applied in a manner so that the Canadian Revolver
Advances outstanding hereunder to each Canadian Revolver Lender will, to
the extent possible, thereafter be pro rata in accordance with such
Canadian Revolver Lender's Percentage Share. The Canadian Administration
Agent is authorized by Canadian Revolver Borrower and each Canadian
Revolver Lender to determine, in its sole and unfettered discretion, the
portion of each Canadian Revolver Advance and each Type of Canadian
Revolver Advance to be made available by each Canadian Revolver Lender and
the application of repayments and reductions of Canadian Revolver Advances
to give effect to the provisions of this Section, provided that no Canadian
Revolver Lender shall, as a result of any such determination, have a
Percentage Share of the Canadian Revolver Advances which is in excess of
its Percentage Share of the Canadian Revolver Commitment.
(ii) In the event it is not practicable to allocate Bankers'
Acceptances to each Canadian Revolver Lender such that the aggregate amount
of Bankers' Acceptances required to be purchased by such Canadian Revolver
Lender hereunder is in a whole multiple of C$100,000, the Canadian
Administration Agent is authorized by each Canadian Borrower and each
Canadian Revolver Lender to make such allocation as the Canadian
Administration Agent determines in its sole and unfettered discretion may
be equitable in the circumstances and, if the aggregate amount of such
Bankers' Acceptances is not a whole multiple of C$100,000, then the
Canadian Administration Agent may allocate (on a basis considered by it to
be equitable) the excess of such Canadian Revolver Advance over the next
lowest whole multiple of C$100,000 to one Canadian Revolver Lender, which
shall purchase a Bankers' Acceptance with a face amount equal to the excess
and having the same term as the corresponding Bankers' Acceptances. In no
event shall the portion of the outstanding Borrowings by way of Bankers'
Acceptances of a Canadian Revolver Lender exceed such Canadian Revolver
Lenders' Percentage Share of the aggregate Borrowings by way of Bankers'
Acceptances by more than C$100,000 as a result of such exercise of
discretion by the Canadian Administration Agent.
48
(f) BA Equivalent Advances. Each Canadian Revolver Lender may, in lieu of
----------------------
accepting a BA on the date of any Borrowing, make a BA Equivalent Advance. The
amount of each BA Equivalent Advance shall be equal to the Discount Proceeds
(with reference to the applicable BA Discount Rate) which would be realized from
a hypothetical sale of those BAs which, but for this subsection, would have been
sold to such Canadian Revolver Lender. If such Canadian Revolver Lender does
not otherwise have a BA Discount Rate applicable to it, the applicable BA
Discount Rate will be calculated as though such Canadian Revolver Lender was
listed on Schedule II of the Bank Act (Canada). Any BA Equivalent Advance shall
be made on the relevant date of any Borrowing, and shall remain outstanding for
the term of the corresponding BA. On the maturity date of the corresponding BA,
such BA Equivalent Advance shall be repaid in an amount equal to the face amount
of a draft that would have been accepted by such Canadian Revolver Lender if
such Canadian Revolver Lender had accepted and purchase a BA hereunder. Each BA
Equivalent Advance made pursuant to this subsection shall be deemed to be a BA
accepted and purchased by such Canadian Revolver Lender pursuant to the terms
hereof, and except in this subsection, any reference to a BA shall include such
BA Equivalent Advance.
Section 2B.9. General Procedures for Bankers' Acceptances.
-------------------------------------------
(a) Continuations. In the case of a Continuation of maturing Bankers'
-------------
Acceptances, each Canadian Revolver Lender in order to satisfy the continuing
liability of Canadian Revolver Borrower to the Canadian Revolver Lender for the
face amount of the maturing Bankers' Acceptances, shall retain for its own
account the Net Proceeds of each new Bankers' Acceptance issued by it in
connection with such Continuation; and Canadian Revolver Borrower shall, on the
maturity date of the maturing Bankers' Acceptances, pay to Canadian
Administration Agent for the benefit of Canadian Revolver Lenders an amount
equal to the difference between the face amount of the maturing Bankers'
Acceptances and the aggregate Net Proceeds of the new Bankers' Acceptances.
(b) Conversion from Canadian Revolver Prime Rate Loans. In the case of a
--------------------------------------------------
Conversion from a Borrowing of Canadian Revolver Prime Rate Loans into a
Borrowing by way of Bankers' Acceptances to be accepted by a Canadian Revolver
Lender pursuant to Sections 2B.1, 2B.2 and 2B.3, such Canadian Revolver Lender,
in order to satisfy the continuing liability of Canadian Revolver Borrower to it
for the principal amount of the Canadian Revolver Prime Rate Loans being
converted, shall retain for its own account the Discount Proceeds of each new
Bankers' Acceptance issued by it in connection with such Conversion; and
Canadian Revolver Borrower shall, on the date of issuance of the Bankers'
Acceptances, pay to Canadian Administration Agent for the benefit of Canadian
Revolver Lenders an amount equal to the difference between the aggregate
principal amount of the Canadian Revolver Prime Rate Loans being converted owing
to the Canadian Revolver Lenders and the aggregate Discount Proceeds of such
Bankers' Acceptances.
(c) Authorization. Canadian Revolver Borrower hereby authorizes each
-------------
Canadian Revolver Lender to complete, stamp, hold, sell, rediscount or otherwise
dispose of all Bankers'
49
Acceptances accepted by it pursuant to this Section in accordance with the
instructions provided by Canadian Revolver Borrower pursuant to Section 2B.3, as
applicable.
(d) Depository Notes. The parties agree that in the administering of
----------------
Bankers' Acceptances, each Canadian Revolver Lender may avail itself of the debt
clearing services offered by a clearing house for depository notes pursuant to
the Depository Bills and Notes Act (Canada) and that the procedures set forth in
Article II be deemed amended to the extent necessary to comply with the
requirements of such debt clearing services.
Section 2B.10. Execution of Bankers' Acceptances. The signatures of any
---------------------------------
authorized signatory on Bankers' Acceptances which are authorized and requested
hereunder by the Canadian Revolver Borrower may, at the option of Canadian
Revolver Borrower, be reproduced in facsimile and such Bankers' Acceptances
bearing such facsimile signatures shall be binding on Canadian Revolver Borrower
as if they had been manually signed by such authorized signatory.
Notwithstanding that any person whose signature appears on any Bankers'
Acceptance as a signatory may no longer be an authorized signatory of Canadian
Revolver Borrower at the date of issuance of a Bankers' Acceptance, and
notwithstanding that the signature affixed may be a reproduction only, such
signature shall, unless prior to its use the Canadian Revolver Borrower has
notified the Canadian Administration Agent in writing to contrary, nevertheless
be valid and sufficient for all purposes as if such authority had remained in
force at the time of such issuance and as if such signature had been manually
applied, and any such Bankers' Acceptance so signed shall be binding on Canadian
Revolver Borrower.
Section 2B.11. Escrowed Funds. Upon the occurrence of an Event of
--------------
Default and an acceleration of the Obligations under Section 8.1, or if, after
the making of a prepayment as permitted or required under Section 2B.4, the
outstanding Bankers' Acceptances will exceed the Canadian Revolver Commitment,
Canadian Revolver Borrower shall forthwith pay to Canadian Administration Agent
for deposit into an escrow account maintained by and in the name of Canadian
Administration Agent for the benefit of Canadian Revolver Lenders in accordance
with their Percentage Shares an amount equal to the Canadian Revolver Lenders'
maximum potential liability (as determined by Canadian Administration Agent)
under then outstanding Bankers' Acceptances or the amount by which the then
outstanding Bankers' Acceptances exceed the Canadian Revolver Commitment, as the
case may be (the "Escrow Funds"). The Escrow Funds shall be held by Canadian
------------
Administration Agent for set-off against such outstanding Bankers' Acceptances
or such excess, as the case may be, or future Canadian Obligations, and pending
such application shall bear interest at the rate declared by Canadian
Administration Agent from time to time as that payable by it in respect of
deposits for such amount and for such period relative to the maturity date of
such Bankers' Acceptances, as applicable. If such Event of Default is either
waived or cured in compliance with the terms of this Agreement, or the
outstanding Bankers' Acceptances no longer exceed the Canadian Revolver
Commitment, as the case may be, then the Escrow Funds, together with any accrued
interest to the date of release, shall be forthwith released to Canadian
Revolver Borrower.
Section 2B.12. Canadian Letters of Credit. Subject to the terms and
--------------------------
conditions hereof, Canadian Revolver Borrower may during the Canadian Revolving
Period request Canadian LC
50
Issuer to issue, amend, or extend the expiration date of, one or more Canadian
Letters of Credit denominated in either Canadian Dollars or Dollars, provided
that, after taking such Canadian Letter of Credit into account:
(a) the Canadian Facility Usage does not exceed the Canadian Revolver
Commitment at such time;
(b) the aggregate amount of Canadian LC Obligations at such time does
not exceed the Dollar Equivalent of $5,000,000;
(c) the expiration date of such Canadian Letter of Credit is prior to
the earlier of (i) one (1) year after the date of issuance of such Canadian
Letter of Credit or (ii) the end of the Canadian Commitment Period;
(d) such Canadian Letter of Credit is to be used for general
corporate purposes of Canadian Revolver Borrower or any of its Subsidiaries
and is not directly or indirectly used to assure payment of or otherwise
support any Indebtedness of any Person, except Indebtedness of a Restricted
Person;
(e) the issuance of such Canadian Letter of Credit will be in
compliance with all applicable governmental restrictions, policies, and
guidelines and will not subject Canadian LC Issuer to any cost which is not
reimbursable under Article III;
(f) the form and terms of such Canadian Letter of Credit are
acceptable to Canadian LC Issuer in its sole and absolute discretion; and
(g) all other conditions in this Agreement to the issuance of such
Canadian Letter of Credit have been satisfied.
Canadian LC Issuer will honor any such request if the foregoing conditions (a)
through (g) (in the following Section 2B.13 called the "Canadian LC Conditions")
----------------------
have been met as of the date of issuance, amendment, or extension of the
expiration, of such Canadian Letter of Credit.
Section 2B.13. Requesting Canadian Letters of Credit. Canadian Revolver
-------------------------------------
Borrower must make written application for any Canadian Letter of Credit at
least two Business Days before the date on which Canadian Revolver Borrower
desires for Canadian LC Issuer to issue such Canadian Letter of Credit. By
making any such written application, unless otherwise expressly stated therein,
Canadian Revolver Borrower shall be deemed to have represented and warranted
that the Canadian LC Conditions described in Section 2B.12 will be met as of the
date of issuance of such Canadian Letter of Credit. Each such written
application for a Canadian Letter of Credit must be made in writing in the form
and substance of Exhibit G-2, the terms and provisions of which are hereby
incorporated herein by reference (or in such other form as may mutually be
agreed upon by Canadian LC Issuer and Canadian Revolver Borrower). If all
Canadian LC Conditions for a Canadian Letter of Credit have been met as
described in Section 2B.12 on any Business Day before 11:00 a.m., Toronto,
Ontario time, Canadian LC Issuer will
51
issue such Canadian Letter of Credit on the same Business Day at Canadian LC
Issuer's office in Toronto, Ontario. If the Canadian LC Conditions are met as
described in Section 2B.12 on any Business Day on or after 11:00 a.m., Toronto,
Ontario time, Canadian LC Issuer will issue such Canadian Letter of Credit on
the next succeeding Business Day at Canadian LC Issuer's office in ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇. If any provisions of any Canadian LC Application conflict with any
provisions of this Agreement, the provisions of this Agreement shall govern and
control.
Section 2B.14. Reimbursement and Participations.
--------------------------------
(a) Reimbursement by Canadian Revolver Borrower. Each Matured Canadian LC
-------------------------------------------
Obligation shall constitute a loan by Canadian LC Issuer to Canadian Revolver
Borrower. Canadian Revolver Borrower promises to pay to Canadian LC Issuer, or
to Canadian LC Issuer's order, on demand, the full amount of each Matured
Canadian LC Obligation, together with interest thereon (i) at the Canadian
Revolver Prime Rate to and including the second Business Day after the Matured
Canadian LC Obligation is incurred and (ii) at the Default Rate on each day
thereafter.
(b) Canadian Letter of Credit Advances. If the beneficiary of any Canadian
----------------------------------
Letter of Credit makes a draft or other demand for payment thereunder then
Canadian Revolver Borrower may, during the interval between the making thereof
and the honoring thereof by Canadian LC Issuer, request Canadian Revolver
Lenders to make Canadian Revolver Loans to Canadian Revolver Borrower in the
amount of such draft or demand, which Canadian Revolver Loans shall be made
concurrently with Canadian LC Issuer's payment of such draft or demand and shall
be immediately used by Canadian LC Issuer to repay the amount of the resulting
Matured Canadian LC Obligation. Such a request by Canadian Revolver Borrower
shall be made in compliance with all of the provisions hereof, provided that for
the purposes of the first sentence of Section 2B.1, the amount of such Canadian
Revolver Loans shall be considered, but the amount of the Matured Canadian LC
Obligation to be concurrently paid by such Canadian Revolver Loans shall not be
considered.
(c) Participation by Canadian Lenders. Canadian LC Issuer irrevocably
---------------------------------
agrees to grant and hereby grants to each Canadian Revolver Lender, and -- to
induce Canadian LC Issuer to issue Canadian Letters of Credit hereunder -- each
Canadian Revolver Lender irrevocably agrees to accept and purchase and hereby
accepts and purchases from Canadian LC Issuer, on the terms and conditions
hereinafter stated and for such Canadian Revolver Lender's own account and risk
an undivided interest equal to such Canadian Revolver Lender's Percentage Share
of Canadian LC Issuer's obligations and rights under each Canadian Letter of
Credit issued hereunder and the amount of each Matured Canadian LC Obligation
paid by Canadian LC Issuer thereunder. Each Canadian Revolver Lender
unconditionally and irrevocably agrees with Canadian LC Issuer that, if a
Matured Canadian LC Obligation is paid under any Canadian Letter of Credit for
which Canadian LC Issuer is not reimbursed in full by Canadian Revolver Borrower
in accordance with the terms of this Agreement and the related Canadian LC
Application (including any reimbursement by means of concurrent Canadian
Revolver Loans or by the application of Canadian LC Collateral), such Canadian
Revolver Lender shall (in all circumstances and without set-off or counterclaim)
pay to Canadian LC Issuer on demand, in
52
immediately available funds at Canadian LC Issuer's address for notices
hereunder, such Canadian Revolver Lender's Percentage Share of such Matured
Canadian LC Obligation (or any portion thereof which has not been reimbursed by
Canadian Revolver Borrower). Each Canadian Revolver Lender's obligation to pay
Canadian LC Issuer pursuant to the terms of this subsection is irrevocable and
unconditional. If any amount required to be paid by any Canadian Revolver Lender
to Canadian LC Issuer pursuant to this subsection is paid by such Canadian
Revolver Lender to Canadian LC Issuer within three Business Days after the date
such payment is due, Canadian LC Issuer shall in addition to such amount be
entitled to recover from such Canadian Revolver Lender, on demand, interest
thereon calculated from such due date at the "Bank Rate" as set by the Bank of
Canada, as quoted on Reuters page BOCFAD. If any amount required to be paid by
any Canadian Revolver Lender to Canadian LC Issuer pursuant to this subsection
is not paid by such Canadian Revolver Lender to Canadian LC Issuer within three
Business Days after the date such payment is due, Canadian LC Issuer shall in
addition to such amount be entitled to recover from such Canadian Revolver
Lender, on demand, interest thereon calculated from such due date at the
Canadian Revolver Prime Rate.
(d) Distributions to Participants. Whenever Canadian LC Issuer has in
-----------------------------
accordance with this section received from any Canadian Revolver Lender payment
of such Canadian Revolver Lender's Percentage Share of any Matured Canadian LC
Obligation, if Canadian LC Issuer thereafter receives any payment of such
Matured Canadian LC Obligation or any payment of interest thereon (whether
directly from Canadian Revolver Borrower or by application of Canadian LC
Collateral or otherwise, and excluding only interest for any period prior to
Canadian LC Issuer's demand that such Canadian Revolver Lender make such payment
of its Percentage Share), Canadian LC Issuer will distribute to such Canadian
Revolver Lender its Percentage Share of the amounts so received by Canadian LC
Issuer; provided, however, that if any such payment received by Canadian LC
-------- -------
Issuer must thereafter be returned by Canadian LC Issuer, such Canadian Revolver
Lender shall return to Canadian LC Issuer the portion thereof which Canadian LC
Issuer has previously distributed to it.
(e) Calculations. A written advice setting forth in reasonable detail the
------------
amounts owing under this section, submitted by Canadian LC Issuer to Canadian
Revolver Borrower or any Canadian Revolver Lender from time to time, shall be
conclusive, absent manifest error, as to the amounts thereof.
Section 2B.15. Canadian Letter of Credit Fees. In consideration of
------------------------------
Canadian LC Issuer's issuance of any Canadian Letter of Credit, Canadian
Revolver Borrower agrees to pay (i) to Canadian Administration Agent for the
account of each Canadian Revolver Lender in proportion to its Percentage Share,
a Canadian Letter of Credit fee equal to the Canadian Letter of Credit Fee Rate
applicable each day times the face amount of such Canadian Letter of Credit and
(ii) to such Canadian LC Issuer for its own account, a letter of credit fronting
fee at a rate equal to one-eighth percent (.125%) per annum times the face
amount of such Canadian Letter of Credit. Each such fee will be calculated on
the face amount of each Canadian Letter of Credit outstanding on each day at the
above applicable rates and will be payable quarterly in arrears on the last day
of each March, June, September and December. In addition, Canadian Revolver
Borrower will pay to Canadian LC Issuer a minimum administrative issuance fee
and such other
53
fees and charges customarily charged by the Canadian LC Issuer in respect of any
issuance, amendment or negotiation of any Canadian Letter of Credit in
accordance with the Canadian LC Issuer's published schedule of such charges
effective as of the date of such amendment or negotiation.
Section 2B.16. No Duty to Inquire.
------------------
(a) Drafts and Demands. Canadian LC Issuer is authorized and instructed to
------------------
accept and pay drafts and demands for payment under any Canadian Letter of
Credit without requiring, and without responsibility for, any determination as
to the existence of any event giving rise to said draft, either at the time of
acceptance or payment or thereafter. Canadian LC Issuer is under no duty to
determine the proper identity of anyone presenting such a draft or making such a
demand (whether by tested telex or otherwise) as the officer, representative or
agent of any beneficiary under any Canadian Letter of Credit, and payment by
Canadian LC Issuer to any such beneficiary when requested by any such purported
officer, representative or agent is hereby authorized and approved. Canadian
Revolver Borrower releases each Lender Party from, and agrees to hold each
Lender Party harmless and indemnified against, any liability or claim in
connection with or arising out of the subject matter of this section, which
indemnity shall apply whether or not any such liability or claim is in any way
or to any extent caused, in whole or in part, by any negligent act or omission
of any kind by any Lender Party, provided only that no Lender Party shall be
entitled to indemnification for that portion, if any, of any liability or claim
which is proximately caused by its own individual gross negligence or willful
misconduct, as determined in a final judgment.
(b) Extension of Maturity. If the maturity of any Canadian Letter of
---------------------
Credit is extended by its terms or by Law or governmental action, if any
extension of the maturity or time for presentation of drafts or any other
modification of the terms of any Canadian Letter of Credit is made at the
request of any Restricted Person, or if the amount of any Canadian Letter of
Credit is increased at the request of any Restricted Person, this Agreement
shall be binding upon all Restricted Persons with respect to such Canadian
Letter of Credit as so extended, increased or otherwise modified, with respect
to drafts and property covered thereby, and with respect to any action taken by
Canadian LC Issuer, Canadian LC Issuer's correspondents, or any Canadian
Revolver Lender in accordance with such extension, increase or other
modification.
(c) Transferees of Canadian Letters of Credit. If any Canadian Letter of
-----------------------------------------
Credit provides that it is transferable, Canadian LC Issuer shall have no duty
to determine the proper identity of anyone appearing as transferee of such
Canadian Letter of Credit, nor shall Canadian LC Issuer be charged with
responsibility of any nature or character for the validity or correctness of any
transfer or successive transfers, and payment by Canadian LC Issuer to any
purported transferee or transferees as determined by Canadian LC Issuer is
hereby authorized and approved, and Canadian Revolver Borrower releases each
Lender Party from, and agrees to hold each Lender Party harmless and indemnified
against, any liability or claim in connection with or arising out of the
foregoing, which indemnity shall apply whether or not any such liability or
claim is in any way or to any extent caused, in whole or in part, by any
negligent act or omission of any kind by any Lender Party,
54
provided only that no Lender Party shall be entitled to indemnification for that
portion, if any, of any liability or claim which is proximately caused by its
own individual gross negligence or willful misconduct, as determined in a final
judgment.
Section 2B.17. Canadian LC Collateral.
----------------------
(a) Canadian LC Obligations in Excess of Canadian Revolver Commitment. If,
-----------------------------------------------------------------
after the making of all mandatory prepayments required under Section 2B.4(c),
the outstanding Canadian LC Obligations will exceed the Canadian Revolver
Commitment, then in addition to prepayment of the entire principal balance of
the Canadian Revolver Loans, Canadian Revolver Borrower will immediately pay to
Canadian LC Issuer an amount equal to such excess. Canadian LC Issuer will hold
such amount as collateral security for the remaining Canadian LC Obligations
(all such amounts held as collateral security for Canadian LC Obligations being
herein collectively called "Canadian LC Collateral") and the other Obligations,
----------------------
and such collateral may be applied from time to time to any Matured Canadian LC
Obligations or other Obligations which are due and payable. Neither this
subsection nor the following subsection shall, however, limit or impair any
rights which Canadian LC Issuer may have under any other document or agreement
relating to any Canadian Letter of Credit, Canadian LC Collateral or Canadian LC
Obligation, including any LC Application, or any rights which any Canadian
Lender Party may have to otherwise apply any payments by Canadian Revolver
Borrower and any Canadian LC Collateral under Section 3B.1.
(b) Acceleration of Canadian LC Obligations. If the Obligations or any
---------------------------------------
part thereof become immediately due and payable pursuant to Section 8.1 then,
unless all Canadian Revolver Lenders otherwise specifically elect to the
contrary (which election may thereafter be retracted by any Canadian Revolver
Lender at any time), all Canadian LC Obligations shall become immediately due
and payable without regard to whether or not actual drawings or payments on the
Canadian Letters of Credit have occurred, and Canadian Revolver Borrower shall
be obligated to pay to Canadian LC Issuer immediately an amount equal to the
aggregate Canadian LC Obligations which are then outstanding to be held as
Canadian LC Collateral.
(c) Investment of Canadian LC Collateral. Pending application thereof, all
------------------------------------
Canadian LC Collateral shall be invested by Canadian LC Issuer in such Cash
Equivalents as Canadian LC Issuer may choose in its sole discretion. All
interest on (and other proceeds of) such Investments shall be reinvested or
applied to Matured Canadian LC Obligations or other Obligations which are due
and payable. When all Obligations have been satisfied in full, including all
Canadian LC Obligations, all Canadian Letters of Credit have expired or been
terminated, and all of Canadian Borrowers's reimbursement obligations in
connection therewith have been satisfied in full, Canadian LC Issuer shall
release any remaining Canadian LC Collateral. Canadian Revolver Borrower hereby
assigns and grants to Canadian LC Issuer for the benefit of Canadian Revolver
Lenders a continuing security interest in all Canadian LC Collateral paid by it
to Canadian LC Issuer, all Investments purchased with such Canadian LC
Collateral, and all proceeds thereof to secure its Matured Canadian LC
Obligations and its Obligations under this Agreement, each Canadian Revolver
Note, and the other Loan Documents, and Canadian Revolver Borrower agrees that
such Canadian LC Collateral, Investments and proceeds shall be subject to all of
the
55
terms and conditions of the Security Documents. Canadian Revolver Borrower
further agrees that Canadian LC Issuer shall have all of the rights and remedies
of a secured party under the Personal Property Security Act (Alberta) with
respect to such security interest and that an Event of Default under this
Agreement shall constitute a default for purposes of such security interest.
(d) Payment of Canadian LC Collateral. When Canadian Revolver Borrower is
---------------------------------
required to provide Canadian LC Collateral for any reason and fails to do so on
the day when required, Canadian LC Issuer or Canadian Administration Agent may
without prior notice to Canadian Revolver Borrower or any other Restricted
Person provide such Canadian LC Collateral (whether by application of proceeds
of other Collateral, by transfers from other accounts maintained with Canadian
LC Issuer, or otherwise) using any available funds of Canadian Revolver Borrower
or any other Person also liable to make such payments, and Canadian LC Issuer or
Canadian Administration Agent will give notice thereof to Canadian Revolver
Borrower promptly after such application or transfer. Any such amounts which
are required to be provided as Canadian LC Collateral and which are not provided
on the date required shall, for purposes of each Security Document, be
considered past due Obligations owing hereunder, and Canadian LC Issuer is
hereby authorized to exercise its respective rights under each Security Document
to obtain such amounts.
Section 2B.18. Hedging Contracts. All Hedging Contracts permitted
-----------------
hereunder entered into with any one or more Canadian Revolver Lenders or their
Affiliates shall be deemed to be Obligations and be secured by all Collateral;
subject, however, to the provisions of the Intercreditor Agreement.
ARTICLE IIC - Term Loans
----------
Section 2C.1. Term Loans. Subject to the terms and conditions hereof,
----------
each Term Lender agrees to make one (1) advance to Term Borrower (herein called
such Lender's "Term Loan") upon Term Borrower's request on or before May 15,
---------
2001, provided that (a) such Term Loan by each Term Lender does not exceed such
Term Lender's Term Loan amount set forth on the Lender Schedule and (b) the
aggregate amount of all Term Loans does not exceed $100,000,000. Portions of
each Term Lender's Term Loan may from time to time be designated as a Term Base
Rate Loan or Term LIBOR Loan as provided herein. The obligation of Term
Borrower to repay to each Term Lender the amount of the Term Loan made by such
Term Lender to Term Borrower, together with interest accruing in connection
therewith, shall be evidenced by a single promissory note (herein called such
Term Lender's "Term Note") made by Term Borrower payable to the order of such
---------
Term Lender in the form of Exhibit A-3 with appropriate insertions. The amount
of principal owing on any Term Lender's Term Note at any given time shall be the
amount of such Term Lender's Term Loan minus all payments of principal
theretofore received by such Term Lender on such Term Note. Interest on each
Term Note shall accrue and be due and payable as provided herein and therein.
Each Term Note shall be due and payable as provided herein and therein, and
shall be due and payable in full on the Term Loan Maturity Date. No portion of
any Term Loan which has been repaid may be reborrowed. Term Borrower may have
no more than three Borrowings of Term LIBOR Loans outstanding at any time. All
56
payments of principal and interest on the Term Loans shall be made in Dollars.
All Term Loans shall be advanced to Term Borrower in Dollars.
Section 2C.2. Continuations and Conversions of Existing Term Loans. Term
----------------------------------------------------
Borrower may make the following elections with respect to outstanding Term Loans
(1) to Convert, in whole or part, any Type of Term Loan to any other Type of
Term Loan, provided that any such Conversion of any Term 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 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 elections, Term Borrower may combine existing Term
Loans made pursuant to separate Borrowings into one new Borrowing or divide
existing Term Loans made pursuant to one Borrowing into separate new Borrowings,
provided that Term Borrower may have no more than three Borrowings of Term LIBOR
Loans outstanding at any time. To make any such election, Term Borrower must
give to Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of any such Conversion or Continuation of existing Term
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 Loans which are to be Continued or
Converted;
(b) specify (i) the aggregate amount of any Borrowing of Term Base
Rate Loans into which such existing Term 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 LIBOR Loans
into which such existing Term 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 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 Base Rate Loans is to occur, or (ii) the third
Business Day preceding the day on which any such Continuation or Conversion
to Term 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 B-3, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by Term 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
Lender prompt notice of the terms thereof. Each Continuation/Conversion Notice
shall be irrevocable and binding on Term Borrower. During the continuance of
any Default, Term Borrower may not make any election to Convert existing Term
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) Term Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing LIBOR
Loans at least
57
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 Base Rate Loans at the end of such Interest
Period. No new funds shall be repaid by Term Borrower or advanced by any Term
Lender in connection with any Continuation or Conversion of existing Term 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 Loans and the
interest rate applicable thereto.
Section 2C.3. Repayments.
----------
(a) Scheduled Repayments of Principal. Subject to Section 2C.3(b) Term
---------------------------------
Borrower shall repay the principal of the Term Loans as follows: (i) a
principal payment in the amount of $1,000,000 shall be due and payable on May 4,
2002; (ii) a principal payment in the amount of $7,000,000 shall be due and
payable on May 4, 2003; (iii) a principal payment in the amount of $8,000,000
shall be due and payable on each of May 4, 2004 and May 4, 2005; and (iv) the
outstanding principal balance shall be due on the Term Loan Maturity Date.
(b) Income Tax Act (Canada). Except as otherwise provided in Section 8.1,
-----------------------
notwithstanding anything to the contrary contained herein, in no event shall
Term Borrower be required to repay 25% or more of the principal amount (as
defined in the Income Tax Act (Canada)) of the Term Loans made to it prior to
five years and a day after the date on which the Term Loans are made.
(c) Interest Rates. Each Term Loan shall bear interest as follows: (i)
--------------
unless the Default Rate shall apply, (A) each Term Base Rate Loan shall bear
interest on each day outstanding at the US Base Rate plus the Term Base Rate
Margin in effect on such day, and (B) each Term LIBOR Loan shall bear interest
on each day during the related Interest Period at the related US LIBOR Rate plus
the Term LIBOR Rate Margin in effect on such day, and (ii) during a Default Rate
Period, all Term 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 Term Borrower, based upon Section 8.1(i)(i),
(i)(ii) or (i)(iii) exists and the Term 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 Base Rate
Margin, or the Term LIBOR Rate Margin changes. In no event shall the interest
rate on any Term Loan exceed the Highest Lawful Rate.
(d) Optional Prepayments. Term Borrower may, upon three Business Days'
--------------------
notice, as to Term LIBOR Loans, or one Business Day's notice, as to Term Base
Rate Loans, to Administrative Agent (and Administrative Agent will promptly give
notice to the other Term Lenders) from time to time and without premium or
penalty prepay the Term Loans, in whole or in part, so long as the aggregate
amounts of all partial prepayments of principal on the Term Loans equals
$5,000,000 or any higher integral multiple of $1,000,000. Notwithstanding the
foregoing sentence, if Term Borrower shall prepay, in whole or in part, the Term
Loans before
58
the first anniversary of the initial advance of the Term Loans, voluntarily as
provided in this subsection, Term Borrower shall pay to Administrative Agent for
the account of each Term Lender a prepayment premium (the "Prepayment Premium")
in an amount equal to one percent (1.0%) of the amount of any such prepayment.
Upon receipt of any notice described in the first sentence of this subsection,
Administrative Agent shall give each Term Lender prompt notice of the terms
thereof. Each prepayment of principal of a Term 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 2C.4. Use of Proceeds. Term Borrower shall use all Term Loans to
---------------
finance the ▇▇▇▇▇▇ Acquisition. In no event shall the funds from any Term 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. Term 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.
Section 2C.5. Hedging Contracts. All Hedging Contracts permitted
-----------------
hereunder entered into with any one or more Term Lenders or their Affiliates
shall be deemed to be Obligations and be secured by all Collateral; subject,
however, to the provisions of the Intercreditor Agreement.
ARTICLE III - Payments to Lenders
-------------------
Section 3.1. General Procedures.
------------------
(a) Each Restricted Person shall pay all amounts owing such Restricted
Person with respect to any US Obligations (whether for principal, interest,
fees, or otherwise) to Administrative Agent for the account of the US Lender
Party to whom such payment is owed in Dollars, without set-off, deduction or
counterclaim, and in immediately available funds and each Restricted Person
shall pay all amounts owing by such Restricted Person with respect to any
Canadian Obligations (whether for principal, interest, fees, or otherwise) to
Canadian Administration Agent for the account of the Canadian Lender Party to
whom such payment is owed in Canadian Dollars (or with respect to Canadian
Revolver Loans funded in Dollars, in Dollars), without set-off, deduction or
counterclaim, and in immediately available funds; provided, however, that all
amounts paid by Administrative Agent on behalf of any Restricted Person in
accordance with Section 6.9 hereof shall be reimbursed to Administrative Agent
by US Borrower in the currency in which such amounts were paid by Administrative
Agent. If any payment is received on account of any US Obligation in any
currency other than Dollars (whether voluntarily or pursuant to any order or
judgment or the enforcement thereof or the realization of any security or the
liquidation of any Person or otherwise howsoever), such payment shall constitute
a discharge of the liability of a Restricted Person hereunder and under
59
the other Loan Documents in respect of such US Obligation only to the extent of
the amount of Dollars which the relevant Lender Parties are able to purchase
with the amount of the other currency received by it on the Business Day next
following such receipt by the Administrative Agent in accordance with its normal
procedures and after deducting any premium and costs of exchange. If any payment
is received on account of any Canadian Obligation in any currency other than
Canadian Dollars (whether voluntarily or pursuant to any order or judgment or
the enforcement thereof or the realization of any security or the liquidation of
any Person or otherwise howsoever), such payment shall constitute a discharge of
the liability of a Restricted Person hereunder and under the other Loan
Documents in respect of such Canadian Obligation only to the extent of the
amount of Canadian Dollars which the relevant Lender Parties are able to
purchase with the amount of the other currency received by it on the Business
Day next following such receipt by Canadian Administration Agent in accordance
with its normal procedures and after deducting any premium and costs of
exchange. Each payment under the Loan Documents must be received by the relevant
Agent not later than noon, Boston, Massachusetts time or Toronto, Ontario time,
as the case may be, on the date such payment becomes due and payable. Any
payment received by the relevant Agent after such time will be deemed to have
been made on the next following Business Day. Should any such payment become due
and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day, and, in the case of a
payment of principal or past due interest, interest shall accrue and be payable
thereon for the period of such extension as provided in the Loan Document under
which such payment is due. Each payment under a Loan Document to a US Lender
Party shall be due and payable at the place provided therein and, if no specific
place of payment is provided, shall be due and payable at the place of payment
of Administrative Agent's US Note. Each Payment under a Loan Document to a
Canadian Lender Party shall be due and payable at the place provided therein,
and, if no specific place of payment is provided, shall be due and payable at
the place of payment in Canadian Administration Agent's Canadian Revolver Note.
(b) When Administrative Agent collects or receives money on account of the
US Obligations, other than as provided in Section 3.9, Administrative Agent
shall distribute all money so collected or received, and each US Lender Party
shall apply all such money so distributed, as follows:
(i) first, for the payment of all US Obligations which are then due
(and if such money is insufficient to pay all such US Obligations, first to
any reimbursements due Administrative Agent under Section 6.9 or 10.4 and
then to the partial payment of all other US Obligations then due in
proportion to the amounts thereof, or as US Lender Parties shall otherwise
agree);
(ii) then for the prepayment of amounts owing under the Loan Documents
(other than principal on the US Notes or the Term Notes) if so specified by
US Borrower or Term Borrower;
60
(iii) then for the prepayment of principal on the US Notes, together
with accrued and unpaid interest on the principal so prepaid, and then held
as US LC Collateral pursuant to Section 2A.13(c); and
(iv) last, for the payment or prepayment of any other US Obligations.
All payments applied to principal or interest on any US Note or Term Note shall
be applied first to any interest then due and payable, then to principal then
due and payable, and last to any prepayment of principal and accrued interest
thereon in compliance with Sections 2A.6, 2A.7 and 2C.3(d), as applicable. All
distributions of amounts described in any of subsections (ii), (iii), or (iv)
above shall be made by Administrative Agent pro rata to each US Lender Party
then owed US Obligations described in such subsection in proportion to all
amounts owed to all US Lender Parties which are described in such subsection;
provided that if any US Lender then owes payments to US LC Issuer for the
purchase of a participation under Section 2A.10 or to Administrative Agent under
Section 9.4, any amounts otherwise distributable under this section to such US
Lender shall be deemed to belong to US LC Issuer, or Administrative Agent,
respectively, to the extent of such unpaid payments, and Administrative Agent
shall apply such amounts to make such unpaid payments rather than distribute
such amounts to such US Lender.
(c) When Canadian Administration Agent collects or receives money on
account of the Canadian Obligations, other than as provided in Section 3.9,
Canadian Administration Agent shall distribute all money so collected or
received, and each Canadian Lender Party shall apply all such money so
distributed, as follows:
(i) first, for the payment of all Canadian Obligations which are
then due (and if such money is insufficient to pay all such Canadian
Obligations, first to any reimbursements due Canadian Administration Agent
under 10.4 and then to the partial payment of all other Canadian
Obligations then due in proportion to the amounts thereof, or as Canadian
Lender Parties shall otherwise agree);
(ii) then for the prepayment of amounts owing under the Loan
Documents (other than principal on the Canadian Revolver Notes) if so
specified by Canadian Revolver Borrower;
(iii) then for the prepayment of principal on the Canadian Revolver
Notes, together with accrued and unpaid interest on the principal so
prepaid, and then held as Canadian LC Collateral pursuant to Section 2B.17;
and
(iv) last, for the payment or prepayment of any other Canadian
Obligations.
All payments applied to principal or interest on any Canadian Revolver Note
shall be applied first to any interest then due and payable, then to principal
then due and payable, and last to any prepayment of principal and accrued
interest thereon in compliance with Sections 2B.6 and 2B.7, as applicable. All
distributions of amounts described in any of subsections (ii), (iii), or (iv)
above shall be made by Canadian Administration Agent pro rata to each Canadian
Lender Party
61
then owed Canadian Obligations described in such subsection in proportion to all
amounts owed to all Canadian Lender Parties which are described in such
subsection; provided that if any Canadian Revolver Lender then owes payments to
Canadian LC Issuer for the purchase of a participation under Section 2B.14(c) or
to Canadian Administration Agent under Section 9.4, any amounts otherwise
distributable under this section to such Canadian Revolver Lender shall be
deemed to belong to Canadian LC Issuer, or Canadian Administration Agent,
respectively, to the extent of such unpaid payments, and Canadian Administration
Agent shall apply such amounts to make such unpaid payments rather than
distribute such amounts to such Canadian Revolver Lender.
Section 3.2. Capital Reimbursement. If either (a) the introduction or
---------------------
implementation of or the compliance with or any change in or in the
interpretation of any Law, or (b) the introduction or implementation of or the
compliance with any request, directive or guideline from any central bank or
other governmental authority (whether or not having the force of Law) affects or
would affect the amount of capital required or expected to be maintained by any
Lender Party or any corporation controlling any Lender Party, then, within five
Business Days after demand by such Lender Party, the relevant Borrower will pay
to the relevant Agent for the benefit of such Lender Party, from time to time as
specified by such Lender Party, such additional amount or amounts which such
Lender Party shall determine to be appropriate to compensate such Lender Party
or any corporation controlling such Lender Party in light of such circumstances,
to the extent that such Lender Party reasonably determines that the amount of
any such capital would be increased or the rate of return on any such capital
would be reduced by or in whole or in part based on the existence of the face
amount of such Lender Party's Loans, Letters of Credit, participations in
Letters of Credit, in Banker's Acceptances, or commitments under this Agreement.
Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit. If any
--------------------------------------------------
applicable Law (whether now in effect or hereinafter enacted or promulgated,
including Regulation D) or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of Law):
(a) shall change the basis of taxation of payments to any Lender
Party of any principal, interest, or other amounts attributable to any
LIBOR Loan or Letter of Credit or otherwise due under this Agreement in
respect of any LIBOR Loan or Letter of Credit (other than taxes imposed on,
or measured by, the overall net income of such Lender Party or any
Applicable Lending Office of such Lender Party by any jurisdiction in which
such Lender Party or any such Applicable Lending Office is located); or
(b) shall change, impose, modify, apply or deem applicable any
reserve, special deposit or similar requirements in respect of any LIBOR
Loan or any Letter of Credit (excluding those for which such Lender Party
is fully compensated pursuant to adjustments made in the definition of US
LIBOR Rate) or against assets of, deposits with or for the account of, or
credit extended by, such Lender Party; or
62
(c) shall impose on any Lender Party or the interbank eurocurrency
deposit market any other condition affecting any LIBOR Loan or Letter of
Credit, the result of which is to increase the cost to any Lender Party of
funding or maintaining any LIBOR Loan or of issuing any Letter of Credit or
to reduce the amount of any sum receivable by any Lender Party in respect
of any LIBOR Loan or Letter of Credit by an amount deemed by such Lender
Party to be material,
then such Lender Party shall promptly notify Administrative Agent and Borrower
in writing of the happening of such event and of the amount required to
compensate such Lender Party for such event (on an after-tax basis, taking into
account any taxes on such compensation), whereupon (i) Borrower shall, within
five Business Days after demand therefor by such Lender Party, pay such amount
to Administrative Agent for the account of such Lender Party and (ii Borrower
may elect, by giving to Administrative Agent and such Lender Party not less than
three Business Days' notice, to Convert all (but not less than all) of any such
LIBOR Loans into Base Rate Loans.
Section 3.4. Notice; Change of Applicable Lending Office. A Lender Party
-------------------------------------------
shall notify the relevant Borrower of any event occurring after the date of this
Agreement that will entitle such Lender Party to compensation under Section 3.2,
3.3, or 3.5 hereof as promptly as practicable, but in any event within 90 days,
after such Lender Party obtains actual knowledge thereof; provided, that (i) if
--------
such Lender Party fails to give such notice within 90 days after it obtains
actual knowledge of such an event, such Lender Party shall, with respect to
compensation payable pursuant to Section 3.2, 3.3, or 3.5 in respect of any
costs resulting from such event, only be entitled to payment under Section 3.2,
3.3, or 3.5 hereof for costs incurred from and after the date 90 days prior to
the date that such Lender Party does give such notice and (ii) such Lender Party
will designate a different Applicable Lending Office for the Loans affected by
such event if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the sole opinion of such Lender Party, be
disadvantageous to such Lender Party, except that such Lender Party shall have
no obligation to designate an Applicable Lending Office located in the United
States of America. Each Lender Party will furnish to the relevant Borrower a
certificate setting forth the basis and amount of each request by such Lender
Party for compensation under Section 3.2, 3.3, or 3.5 hereof.
Section 3.5. Availability. If (a) any change in applicable Laws, or in
------------
the interpretation or administration thereof of or in any jurisdiction
whatsoever, domestic or foreign, shall make it unlawful or impracticable for any
Lender Party to fund or maintain LIBOR Loans, accept BA's or to issue or
participate in Letters of Credit, or shall materially restrict the authority of
any Lender Party to purchase or take offshore deposits of dollars (i.e.,
"eurodollars"), or (b) any Lender Party determines that matching deposits
appropriate to fund or maintain any LIBOR Loan are not available to it, or (c)
any Lender Party determines that the formula for calculating the US LIBOR Rate
does not fairly reflect the cost to such Lender Party of making or maintaining
loans based on such rate, in each case with respect to the relevant Commitment
hereunder, then, upon notice by such Lender Party to the relevant Borrower and
the relevant Agent, such Borrower's right to elect LIBOR Loans from such Lender
Party or issue BA's (or, if applicable, to obtain Letters of Credit) shall be
suspended to the extent and for the duration of
63
such illegality, impracticability or restriction and all LIBOR Loans of such
Lender Party which are then outstanding and all BA's which are then outstanding
or are then the subject of any Borrowing Notice and which cannot lawfully or
practicably be maintained, funded or accepted shall immediately become or
remain, or shall be funded as, Base Rate Loans of such Lender Party. With
respect to each Commitment, the relevant Borrower thereunder agrees to indemnify
each Lender Party extending credit pursuant thereto, and hold each such Lender
Party harmless against all costs, expenses, claims, penalties, liabilities and
damages which may result from any such change in Law, interpretation or
administration. Such indemnification shall be on an after-tax basis, taking into
account any taxes imposed on the amounts paid as indemnity.
Section 3.6. Funding Losses. In addition to its other obligations
--------------
hereunder, with respect to each Commitment, the relevant Borrower thereunder
will indemnify each Lender Party extending credit pursuant thereto against, and
reimburse each Lender Party on demand for, any loss or expense incurred or
sustained by such Lender Party (including any loss or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender Party to fund or maintain LIBOR Loans), as a result of (a) any payment or
prepayment (whether or not authorized or required hereunder) of all or a portion
of a LIBOR Loan on a day other than the day on which the applicable Interest
Period ends, (b) any payment or prepayment, whether or not required hereunder,
of a Loan made after the delivery, but before the effective date, of a
Continuation/Conversion Notice, if such payment or prepayment prevents such
Continuation/Conversion Notice from becoming fully effective, (c) the failure of
any Loan to be made or of any Continuation/Conversion Notice to become effective
due to any condition precedent not being satisfied or due to any other action or
inaction of any Restricted Person, or (d) any Conversion (whether or not
authorized or required hereunder) of all or any portion of any LIBOR Loan into a
Base Rate Loan or into a different LIBOR Loan on a day other than the day on
which the applicable Interest Period ends. Such indemnification shall be on an
after-tax basis, taking into account any taxes imposed on the amounts paid as
indemnity.
Section 3.7. Reimbursable Taxes. With respect to each Commitment, the
------------------
relevant Borrower thereunder covenants and agrees with each Lender Party
extending credit pursuant thereto that:
(a) Such Borrower will indemnify each such Lender Party against and
reimburse each such Lender Party for all present and future stamp and other
taxes, duties, levies, imposts, deductions, charges, costs, and
withholdings whatsoever imposed, assessed, levied or collected on or in
respect of this Agreement, any LIBOR Loans, any BA's or Letters of Credit
(whether or not legally or correctly imposed, assessed, levied or
collected) including all taxes imposed pursuant to Part XIII of the Income
Tax Act (Canada) and any withholding or other taxes imposed on any Lender
Party under Canadian Law, excluding, however, any taxes imposed on or
measured by the overall net income of any Agent or such Lender Party or any
Applicable Lending Office of such Lender Party by any jurisdiction in which
such Lender Party or any such Applicable Lending Office is located (all
such non-excluded taxes, levies, costs and charges being collectively
called "Reimbursable Taxes" in this section). Such indemnification shall
be
64
on an after-tax basis, taking into account any taxes imposed on the amounts
paid as indemnity.
(b) All payments on account of the principal of, and interest on,
each such Lender Party's Loans and Notes, and all other amounts payable by
such Borrower to any such Lender Party hereunder, shall be made in full
without set-off or counterclaim and shall be made free and clear of and
without deductions or withholdings of any nature by reason of any
Reimbursable Taxes, all of which will be for the account of the relevant
Borrower. In the event of any such Borrower being compelled by Law to make
any such deduction or withholding from any payment to any such Lender
Party, such Borrower shall pay on the due date of such payment, by way of
additional interest, such additional amounts as are needed to cause the
amount receivable by such Lender Party after such deduction or withholding
to equal the amount which would have been receivable in the absence of such
deduction or withholding. If any such Borrower should make any deduction or
withholding as aforesaid, such Borrower shall within 60 days thereafter
forward to such Lender Party an official receipt or other official document
evidencing payment of such deduction or withholding.
(c) If any such Borrower is ever required to pay any Reimbursable Tax
with respect to any LIBOR Loan, such Borrower may elect, by giving to the
relevant Agent and such Lender Party not less than three Business Days'
notice, to Convert all (but not less than all) of any such LIBOR Loan into
a Base Rate Loan, but such election shall not diminish such Borrower's
obligation to pay all Reimbursable Taxes.
(d) Notwithstanding the foregoing provisions of this section, such
Borrower shall be entitled, to the extent it is required to do so by Law,
to deduct or withhold (and not to make any indemnification or reimbursement
for) income or other similar taxes imposed by the United States of America
or Canada (other than any portion thereof attributable to a change in
federal income tax Laws effected after the date hereof) from interest, fees
or other amounts payable hereunder for the account of such Lender Party,
other than such a Lender Party (i) who is a US person for Federal income
tax purposes or (ii) who has the Prescribed Forms on file with
Administrative Agent (with copies provided to the relevant Borrower) for
the applicable year to the extent deduction or withholding of such taxes is
not required as a result of the filing of such Prescribed Forms, provided
that if such Borrower shall so deduct or withhold any such taxes, it shall
provide a statement to Administrative Agent and such Lender Party, setting
forth the amount of such taxes so deducted or withheld, the applicable rate
and any other information or documentation which such Lender Party may
reasonably request for assisting such Lender Party to obtain any allowable
credits or deductions for the taxes so deducted or withheld in the
jurisdiction or jurisdictions in which such Lender Party is subject to tax.
As used in this section, "Prescribed Forms" means such duly executed forms
or statements, and in such number of copies, which may, from time to time,
be prescribed by Law and which, pursuant to applicable provisions of (x) an
income tax treaty between the United States and the country of residence of
such Lender Party providing the forms or statements, (y) the Code, or (z)
any applicable rules or regulations
65
thereunder, permit such Borrower to make payments hereunder for the account
of such Lender Party free of such deduction or withholding of income or
similar taxes.
Section 3.8. Replacement of Lenders. If any Lender Party seeks
----------------------
reimbursement for increased costs under Sections 3.2 through 3.7, then within
ninety days thereafter -- provided no Event of Default then exists -- each
Borrower shall have the right (unless such Lender Party withdraws its request
for additional compensation) to replace such Lender Party by requiring such
Lender Party to assign its Loans and Notes and its commitments hereunder to an
Eligible Transferee reasonably acceptable to Administrative Agent and to the
relevant Borrower, provided that: (i) all Obligations of such Borrower owing to
such Lender Party being replaced (including such increased costs and any
breakage costs with respect to any outstanding LIBOR Loans, but excluding
principal and accrued interest on the Notes being assigned) shall be paid in
full to such Lender Party concurrently with such assignment, and (ii) the
replacement Eligible Transferee shall purchase the Notes being assigned by
paying to such Lender Party a price equal to the principal amount thereof plus
accrued and unpaid interest and accrued and unpaid commitment fees thereon. In
connection with any such assignment the relevant Borrower, Administrative Agent,
such Lender Party and the replacement Eligible Transferee shall otherwise comply
with Section 10.5. Notwithstanding the foregoing rights of each Borrower under
this section, however, Borrowers may not replace any Lender Party which seeks
reimbursement for increased costs under Section 3.2 through 3.7 unless such
Borrower is at the same time replacing all Lender Parties which are then seeking
such compensation.
Section 3.9. Application of Proceeds After Acceleration. If any Event of
------------------------------------------
Default shall have occurred and be continuing, and if the Obligations have
become due and payable, all cash collateral held by Administrative Agent or
Canadian Administration Agent under this Agreement and the proceeds of any sale,
disposition, or other realization by Administrative Agent, Canadian
Administration Agent or the collateral agent under the Intercreditor Agreement
upon the Collateral (or any portion thereof) pursuant to the Security Documents,
shall be distributed in whole or in part by Administrative Agent in the
following order of priority, unless otherwise directed by all of the Lenders:
First, to the Administrative Agent and Canadian Administration Agent,
-----
ratably, in an amount equal to all reimbursements to Administrative Agent or
Canadian Administration Agent due and payable as of the date of such
distribution; provided, however, that in case such proceeds shall be
insufficient to pay in full all such Obligations, then to the payment thereof to
the Administrative Agent and Canadian Administration Agent, ratably, in
proportion to its percentage of the sum of the aggregate amounts of all such
Obligations;
Second, to the Lenders, ratably, in an amount equal to all accrued and
------
unpaid interest and fees owing to the Lenders under this Agreement due and
payable as of the date of such distribution; provided, however, that in case
such proceeds shall be insufficient to pay in full all such Obligations, then to
the payment thereof to the Lenders, ratably, in proportion to its percentage of
the sum of the aggregate amounts of all such Obligations;
66
Third, to the Lenders, ratably, in an amount equal to all Loans plus LC
-----
Obligations; provided, however, that in the case such proceeds shall be
insufficient to pay in full all such Obligations, then to the payment thereof to
the Lenders, ratably, in proportion to its percentage of the sum of the
aggregate amounts of all such Obligations;
Fourth, to the Lenders, ratably, in an amount equal to all amounts owing to
------
the Lenders under all Obligations with respect to Hedging Contracts between any
Restricted Person and any Lender or an Affiliate; provided, however, that in
case such proceeds shall be insufficient to pay in full all such Obligations,
then to the payment thereof to the Lenders, ratably, in proportion to its
percentage of the sum of the aggregate amounts of all such Obligations;
Fifth, to the Lenders in an amount equal to all other Obligations;
-----
provided, however, that in the case such proceeds shall be insufficient to pay
in full such Obligations, then to the payment thereof to the Lenders, ratably,
in proportion to its percentage of the sum of the aggregate amounts of all such
Obligations; and
Sixth, to the extent of any surplus, to the Restricted Persons as their
-----
respective interests may appear, except as may be provided otherwise by law;
it being understood that the Restricted Persons shall remain liable to the
extent of any deficiency between the amount of proceeds of the Collateral and
the aggregate sums referred to in clauses First through Fifth above.
Section 3.10. Currency Conversion and Indemnity.
---------------------------------
(a) If, for the purpose of obtaining or enforcing judgment in any court in
any jurisdiction, it becomes necessary to convert into a particular currency
(the "Judgment Currency") any amount due under a Loan Document in the currency
in which it was effected (the "Agreed Currency") then the conversion shall be
made on the basis of the rate of exchange prevailing on the Business Day
preceding the date such judgment is given and in any event each Restricted
Person obligated to pay such Obligation shall be obligated to pay the relevant
Lender Parties any deficiency in accordance with Section 3.10(b). For the
foregoing purposes "rate of exchange" means the rate at which the relevant
Agent, as applicable, in accordance with its normal banking procedures is able
on the relevant date to purchase the Agreed Currency with the Judgment Currency
after deducting any premium and costs of exchange.
(b) If any Lender Party receives any payment or payments on account of the
liability of a Restricted Person under the Loan Documents pursuant to any
judgment or order in any currency other than the Agreed Currency (an "Other
Currency"), and the amount of the Agreed Currency which the relevant Lender
Party is able to purchase on the Business Day next following such receipt with
the proceeds of such payment or payments in accordance with its normal
procedures and after deducting any premiums and costs of exchange is less than
the amount of the Agreed Currency due in respect of such Obligations immediately
prior to such judgment or order, then the Borrower owing such Obligation on
demand shall, and such Borrower hereby agrees to, indemnify and save such Lender
Party harmless from and against any loss, cost or
67
expense arising out of or in connection with such deficiency. The agreement of
indemnity provided for in this Section 3.10(b) shall constitute an obligation
separate and independent from all other obligations contained in this Agreement,
shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Lender Parties or any of them from
time to time, and shall continue in full force and effect notwithstanding any
judgment or order for a liquidated sum in respect of an amount due hereunder or
under any judgment or order.
ARTICLE IV - Conditions Precedent to Lending
-------------------------------
Section 4.1. Documents to be Delivered. No Lender has any obligation to
-------------------------
make its first Loan, US LC Issuer has no obligation to issue the first US Letter
of Credit, and Canadian LC Issuer has no obligation to issue the first Canadian
Letter of Credit, 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 Agreement and any other documents that Lenders are to
execute in connection herewith.
(b) Each Note.
(c) Each Security Document listed in the Security Schedule.
(d) Certain certificates including:
(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: (1) 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, (2)
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 (3) 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 General Partner, regarding satisfaction of Section 4.2; and
(iii) A solvency certificate from each of US Borrower, Term
Borrower, and Canadian Revolver Borrower and each Guarantor, with
attached pro forma
68
balance sheet for such Person giving effect to the transactions
contemplated by the ▇▇▇▇▇▇ Acquisition Documents.
(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 and the execution by it
of its guaranty of Borrower's Obligations.
(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 states of California and Oklahoma satisfactory to Administrative Agent.
(h) The Initial Financial Statements.
(i) Certificates or binders evidencing Restricted Persons' insurance
in effect on the date hereof.
(j) Copies of such permits and approvals regarding the property and
business of Restricted Persons as Administrative Agent may request.
(k) A certificate signed by the chief executive officer of General
Partner in form and detail acceptable to Administrative Agent confirming
the insurance that is in effect as of the date hereof and certifying that
such insurance is customary for the businesses conducted by Restricted
Persons and is in compliance with the requirements of this Agreement.
(l) 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.
(m) The Intercreditor Agreement.
(n) US Borrower and Canadian Revolver Borrower shall have adopted
such risk management procedures and controls and such trading policies as
shall be satisfactory to each Agent in its sole and absolute discretion.
69
(o) Each Agent and its counsel shall have reviewed and approved, in
its sole and absolute discretion, all outstanding Plains MLP or Resources
shareholder litigation and available insurance with respect thereto.
(p) The ▇▇▇▇▇▇ Acquisition Documents, and the ▇▇▇▇▇▇ Acquisition
Closing Date shall have previously or contemporaneously occurred.
(q) Each Restricted Person shall have executed and delivered the
Marketing Credit Agreement and all conditions precedent to the Marketing
Credit Agreement shall have been satisfied.
(r) General Partner shall have delivered to Administrative Agent a
certificate by the chief financial officer of General Partner, certifying
the pro forma Initial Financial Statements delivered pursuant to clause (h)
above and reflecting pro forma compliance with each event specified in
Sections 7.11 through 7.14, inclusive.
Section 4.2. Additional Conditions Precedent. No Lender has any
-------------------------------
obligation to make any Loan (including its first), and LC Issuer has no
obligation to issue any Letter of Credit (including its first), unless the
following conditions precedent have been satisfied:
(a) All representations and warranties made by any Restricted Person
in any Loan Document shall be true on and as of the date of such Loan or
the date of issuance of such Letter of Credit as if such representations
and warranties had been made as of the date of such Loan or the date of
issuance of such Letter of Credit except to the extent that such
representation or warranty was made as of a specific date or updated,
modified or supplemented as of a subsequent date with the consent of
Majority Lenders.
(b) No Default shall exist at the date of such Loan or the date of
issuance of such Letter of Credit.
(c) No Material Adverse Change shall have occurred to, and no event
or circumstance shall have occurred that could cause a Material Adverse
Change to, Plains MLP's or Borrower's Consolidated financial condition or
businesses since the date of the Initial Financial Statements.
(d) Each Restricted Person shall have 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 of such Loan or the date of
issuance of such Letter of Credit.
(e) The making of such Loan or the issuance of such Letter of Credit
shall not be prohibited by any Law and shall not subject any Lender or any
LC Issuer to any penalty or other onerous condition under or pursuant to
any such Law.
70
(f) Administrative Agent shall have received all documents and
instruments which Administrative Agent has then requested, in addition to
those described in Section 4.1 (including opinions of legal counsel for
Restricted Persons and Administrative Agent; corporate documents and
records; documents evidencing governmental authorizations, consents,
approvals, licenses and exemptions; and certificates of public officials
and of officers and representatives of Borrower and other Persons), as to
(i) the accuracy and validity of or compliance with all representations,
warranties and covenants made by any Restricted Person in this Agreement
and the other Loan Documents, (ii the satisfaction of all conditions
contained herein or therein, and (ii all other matters pertaining hereto
and thereto. All such additional documents and instruments shall be
satisfactory to Administrative Agent in form, substance and date.
ARTICLE V - Representations and Warranties
------------------------------
To confirm each Lender's understanding concerning Restricted Persons and
Restricted Persons' businesses, properties and obligations and to induce each
Lender to enter into this Agreement and to extend credit hereunder, after giving
effect to the consummation of the transactions set forth in the ▇▇▇▇▇▇
Acquisition Documents, Plains MLP, US Borrower, Term Borrower, and Canadian
Revolver Borrower represent and warrant to each Lender that:
Section 5.1. No Default. No Restricted Person is in default in the
----------
performance of any of the covenants and agreements contained in any Loan
Document. No event has occurred and is continuing which constitutes a Default.
Section 5.2. Organization and Good Standing. Each Restricted Person is
------------------------------
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, having all powers required to carry on its
business and enter into and carry out the transactions contemplated hereby.
Each Restricted Person is duly qualified, in good standing, and authorized to do
business in all other jurisdictions within the United States and Canada wherein
the character of the properties owned or held by it or the nature of the
business transacted by it makes such qualification necessary except where the
failure to so qualify would not cause a Material Adverse Change. Each
Restricted Person has taken all actions and procedures customarily taken in
order to enter, for the purpose of conducting business or owning property, each
jurisdiction outside the United States and Canada wherein the character of the
properties owned or held by it or the nature of the business transacted by it
makes such actions and procedures necessary except where the failure to so
qualify would not cause a Material Adverse Change.
Section 5.3. Authorization. Each Restricted Person has duly taken all
-------------
action necessary to authorize the execution and delivery by it of the Loan
Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. Each of US Borrower, Term Borrower, and Canadian Revolver Borrower
is duly authorized to borrow funds hereunder.
71
Section 5.4. No Conflicts or Consents. The execution and delivery by the
------------------------
various Restricted Persons of the Loan Documents and ▇▇▇▇▇▇ Acquisition
Documents to which each is a party, the performance by each of its obligations
under such Loan Documents and ▇▇▇▇▇▇ Acquisition Documents, and the consummation
of the transactions contemplated by the various Loan Documents and various
▇▇▇▇▇▇ Acquisition Documents, do not and will not (i) conflict with any
provision of (1) any Law, (2) the organizational documents of any Restricted
Person or any of its Affiliates, or (3) any agreement, judgment, license, order
or permit applicable to or binding upon any Restricted Person or any of its
Affiliates, (ii result in the acceleration of any Indebtedness owed by any
Restricted Person or any of its Affiliates, or (ii result in or require the
creation of any Lien upon any assets or properties of any Restricted Person or
any of its Affiliates except as expressly contemplated in the Loan Documents.
Except as expressly contemplated in the Loan Documents or disclosed in the
Disclosure Schedule, no permit, consent, approval, authorization or order of,
and no notice to or filing, registration or qualification with, any Tribunal or
third party is required (i) in connection with the execution, delivery or
performance by any Restricted Person of any Loan Document or the ▇▇▇▇▇▇
Acquisition Documents, or (ii) to consummate any transactions contemplated by
the Loan Documents and the ▇▇▇▇▇▇ Acquisition Documents (except, in each case
with respect to the ▇▇▇▇▇▇ Acquisition Documents, as may be waived by the
parties thereto or the party thereunder to whom such obligation is owed or who
has imposed such obligation), other than consents, approvals, authorizations or
orders that have been obtained or notices given or filings made prior to the
date hereof and other than various notices or filings required to be given or
made following the effectiveness of the ▇▇▇▇▇▇ Acquisition Documents.
Section 5.5. Enforceable Obligations. This Agreement is, and the other
-----------------------
Loan Documents and the ▇▇▇▇▇▇ Acquisition Documents when duly executed and
delivered will be, legal, valid and binding obligations of each Restricted
Person which is a party hereto or thereto, enforceable in accordance with their
terms except as such enforcement may be limited by bankruptcy, insolvency or
similar Laws of general application relating to the enforcement of creditors'
rights.
Section 5.6. Initial Financial Statements. Plains MLP has heretofore
----------------------------
delivered to each Lender true, correct and complete copies of the Initial
Financial Statements. The Initial Financial Statements other than pro forma
financial statements fairly present Plains MLP's Consolidated and consolidating
financial position at the date thereof and the Consolidated and consolidating
results of Plains MLP's operations for the periods thereof, and in the case of
the annual Initial Financial Statements, Consolidated cash flows for the period
thereof. The pro forma Initial Financial Statements fairly present Plains MLP's
pro forma Consolidated and consolidating financial position at the date thereof
and the pro forma Consolidated results of Plains MLP's operations for the period
thereof. Since the date of the annual Initial Financial Statements no Material
Adverse Change has occurred, except as reflected in the quarterly Initial
Financial Statements or in the Disclosure Schedule. All Initial Financial
Statements other than pro forma financial statements were prepared in accordance
with GAAP. All Initial Financial Statements that are pro forma financial
statements were prepared in accordance with GAAP with such pro forma adjustments
as have been accepted by Administrative Agent.
72
Section 5.7. Other Obligations and Restrictions. No Restricted Person
----------------------------------
has any outstanding Liabilities of any kind (including contingent obligations,
tax assessments, and unusual forward or long-term commitments) which are, in the
aggregate, material to Plains MLP or material with respect to Plains MLP's
Consolidated financial condition and not shown in the Initial Financial
Statements, disclosed in the Disclosure Schedule or otherwise permitted under
Section 7.1. Except as shown in the Initial Financial Statements or disclosed
in the Disclosure Schedule, no Restricted Person is subject to or restricted by
any franchise, contract, deed, charter restriction, or other instrument or
restriction which could cause a Material Adverse Change.
Section 5.8. Full Disclosure. No certificate, statement or other
---------------
information delivered herewith or heretofore by any Restricted Person to any
Lender in connection with the negotiation of this Agreement or in connection
with any transaction contemplated hereby contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading as of the date made or deemed made. All
written information furnished after the date hereof by or on behalf of any
Restricted Person to Administrative Agent or any Lender Party in connection with
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material respect
in light of the circumstances in which made or based on reasonable estimates on
the date as of which such information is stated or certified. There is no fact
known to any Restricted Person that has not been disclosed to each Lender in
writing which could cause a Material Adverse Change.
Section 5.9. Litigation. Except as disclosed in the Initial Financial
----------
Statements, in the Disclosure Schedule or pursuant to Section 6.4: (i) there
are no actions, suits or legal, equitable, arbitrative or administrative
proceedings pending, or to the knowledge of any Restricted Person threatened,
against any Restricted Person or affecting any Collateral (including, without
limitation, any which challenge or otherwise pertain to any Restricted Person's
title to any Collateral) before any Tribunal which could reasonably be expected
to cause a Material Adverse Change, and (ii) there are no outstanding judgments,
injunctions, writs, rulings or orders by any such Tribunal against any
Restricted Person or any Restricted Person's stockholders, partners, directors
or officers or affecting any Collateral which could reasonably be expected to
cause a Material Adverse Change.
Section 5.10. Labor Disputes and Acts of God. Except as disclosed in the
------------------------------
Disclosure Schedule or otherwise disclosed in writing to Administrative Agent,
neither the business nor the properties of any Restricted Person has been
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance), which could cause
a Material Adverse Change.
Section 5.11. ERISA Plans and Liabilities. All currently existing ERISA
---------------------------
Plans are listed in the Disclosure Schedule. Except as disclosed in the Initial
Financial Statements or in the Disclosure Schedule, no Termination Event has
occurred with respect to any ERISA Plan and all ERISA Affiliates are in
compliance with ERISA in all material respects. No ERISA Affiliate is
73
required to contribute to, or has any other absolute or contingent liability in
respect of, any "multiemployer plan" as defined in Section 4001 of ERISA. Except
as set forth in the Disclosure Schedule: (i) no "accumulated funding deficiency"
(as defined in Section 412(a) of the Code) exists with respect to any ERISA
Plan, whether or not waived by the Secretary of the Treasury or his delegate,
and (ii) the current value of each ERISA Plan's benefits does not exceed the
current value of such ERISA Plan's assets available for the payment of such
benefits by more than $500,000.
Section 5.12. Compliance with Laws. Except as set forth in the
--------------------
Disclosure Schedule, each Restricted Person has all permits, licenses and
authorizations required in connection with the conduct of its businesses, except
to the extent failure to have any such permit, license or authorization could
not cause a Material Adverse Change. Each Restricted Person is in compliance
with the terms and conditions of all such permits, licenses and authorizations,
and is also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any Law, including applicable Environmental Law, or in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the extent
failure to comply could not cause a Material Adverse Change. Without limiting
the foregoing, each Restricted Person (i) has filed and maintained all tariffs
applicable to its business with each applicable commission, (ii) and all such
tariffs are in compliance with all Laws administered or promulgated by each
applicable commission and (iii) has imposed charges on its customers in
compliance with such tariffs, all contracts applicable to its business and all
applicable Laws. As used herein, "commission" includes the Federal Energy
Regulatory Commission, the Public Utility Commission of the State of California
and each other US federal, Canadian federal, state, provincial, or local
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over any Restricted Person or its properties.
Section 5.13. Environmental Laws. As used in this section: "CERCLA"
------------------ ------
means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, "CERCLIS" means the Comprehensive Environmental Response,
-------
Compensation and Liability Information System List of the Environmental
Protection Agency, and "Release" has the meaning given such term in 42 U.S.C.
-------
(S) 9601(22). Without limiting the provisions of Section 5.12, and except as
set forth in the Disclosure Schedule:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed, and no investigation or review is pending or
threatened by any Tribunal or any other Person with respect to any of the
following which in the aggregate could cause a Material Adverse Change: (i)
any alleged generation, treatment, storage, recycling, transportation,
disposal, or Release of any Hazardous Materials, either by any Restricted
Person or on any property owned by any Restricted Person, (ii) any remedial
action which might be needed to respond to any such alleged generation,
treatment, storage, recycling, transportation, disposal, or Release, or
(iii) any alleged failure by any Restricted Person to have any permit,
license or authorization required in connection with
74
the conduct of its business or with respect to any such generation,
treatment, storage, recycling, transportation, disposal, or Release.
(b) No Restricted Person otherwise has any known material contingent
liability in connection with any alleged generation, treatment, storage,
recycling, transportation, disposal, or Release of any Hazardous Materials.
(c) No Restricted Person has handled any Hazardous Materials, other
than as a generator, on any properties now or previously owned or leased by
any Restricted Person to an extent that such handling has caused, or could
cause, a Material Adverse Change.
(d) Except to the extent that the following in the aggregate has not
caused and could not cause a Material Adverse Change:
(i) no PCBs are or have been present at any properties now or
previously owned or leased by any Restricted Person;
(ii) no asbestos is or has been present at any properties now or
previously owned or leased by any Restricted Person;
(iii) there are no underground storage tanks for Hazardous
Materials, active or abandoned, at any properties now or previously
owned or leased by any Restricted Person; and
(iv) no Hazardous Materials have been Released at, on or under
any properties now or previously owned or leased by any Restricted
Person.
(e) No Restricted Person has transported or arranged for the
transportation of any Hazardous Material to any location which is listed on
the National Priorities List under CERCLA, any location listed for possible
inclusion on the National Priorities List by the Environmental Protection
Agency in CERCLIS, nor, except to the extent that has not caused and could
not cause a Material Adverse Change, any location listed on any similar
state list or which is the subject of federal, state or local enforcement
actions or other investigations which may lead to claims against any
Restricted Person for clean-up costs, remedial work, damages to natural
resources or for personal injury claims, including, but not limited to,
claims under CERCLA.
(f) No property now or previously owned or leased by any Restricted
Person is listed or proposed for listing on the National Priority list
promulgated pursuant to CERCLA, in CERCLIS, nor, except to the extent that
has not caused and could not cause a Material Adverse Change, on any
similar state list of sites requiring investigation or clean-up.
(g) There are no Liens arising under or pursuant to any Environmental
Laws on any of the real properties or properties owned or leased by any
Restricted Person, and
75
no government actions of which Borrower is aware have been taken or are in
process which could subject any of such properties to such Liens; nor would
any Restricted Person be required to place any notice or restriction
relating to the presence of Hazardous Materials at any properties owned by
it in any deed to such properties.
(h) There have been no environmental investigations, studies, audits,
tests, reviews or other analyses for ground water or soil contamination
relating to the Release of Hazardous Materials conducted by or which are in
the possession of any Restricted Person in relation to any properties or
facility now or previously owned or leased by any Restricted Person which
have not been made available to Administrative Agent.
(i) (i) Canadian Revolver Borrower and Term Borrower and each
Subsidiary of either such Person are conducting their businesses in
material compliance with all applicable Laws, including Environmental Laws,
and have and are in compliance with all licenses and permits required under
any such Laws, unless failure to so comply could not reasonably be expected
to cause a Material Adverse Change; (ii) none of the operations or
properties of Canadian Revolver Borrower, Term Borrower or any Subsidiary
of either such Person is the subject of federal, provincial or local
investigation evaluating whether any material remedial action is needed to
respond to a release of any Hazardous Materials into the environment or to
the improper storage or disposal (including storage or disposal at offsite
locations) of any Hazardous Materials, unless such remedial action could
not reasonably be expected to cause a Material Adverse Change; and (iii)
neither Canadian Revolver Borrower nor Term Borrower nor any Subsidiary of
either such Person (and to the best knowledge of Canadian Revolver Borrower
and Term Borrower, no other Person) has filed any notice under any Law
indicating that any such Person is responsible for the improper release
into the environment, or the improper storage or disposal, of any material
amount of any Hazardous Materials or that any Hazardous Materials have been
improperly released, or are improperly stored or disposed of, upon any
property of any such Person, unless such failure to so comply could not
reasonably be expected to cause a Material Adverse Change.
Section 5.14. Names and Places of Business. No Restricted Person has,
----------------------------
during the preceding five years, had, been known by, or used any other trade or
fictitious name, except as disclosed in the Disclosure Schedule. Except as
otherwise indicated in the Disclosure Schedule, the chief executive office and
principal place of business of each Restricted Person are (and for the preceding
five years have been) located at the address of US Borrower set out in Section
10.3. Except as indicated in the Disclosure Schedule or otherwise disclosed in
writing to the Administrative Agent, no Restricted Person has any other office
or place of business.
Section 5.15. Borrower's Subsidiaries. Borrower does not presently have
-----------------------
any Subsidiary or own any stock in any other corporation or association except
those listed in the Disclosure Schedule or hereafter disclosed to Administrative
Agent in writing. Neither Borrower nor any Restricted Person is a member of any
general or limited partnership, limited liability company, joint venture or
association of any type whatsoever except those listed in the Disclosure
Schedule
76
or hereafter disclosed to Administrative Agent in writing. Borrower owns,
directly or indirectly, the equity interest in each of its Subsidiaries which is
indicated in the Disclosure Schedule.
Section 5.16. Title to Properties; Licenses. Each Restricted Person has
-----------------------------
good and defensible title to all of its material properties and assets, free and
clear of all Liens other than Permitted Liens and of all impediments to the use
of such properties and assets in such Restricted Person's business. Each
Restricted Person possesses all licenses, permits, franchises, patents,
copyrights, trademarks and trade names, and other intellectual property (or
otherwise possesses the right to use such intellectual property without
violation of the rights of any other Person) which are necessary to carry out
its business as presently conducted and as presently proposed to be conducted
hereafter, and no Restricted Person is in violation in any material respect of
the terms under which it possesses such intellectual property or the right to
use such intellectual property.
Section 5.17. Government Regulation. Neither US Borrower, Term Borrower,
---------------------
Canadian Revolver Borrower, nor any other Restricted Person owing Obligations is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Investment Company Act of 1940 (as any of the preceding acts have been amended)
or any other Law which regulates the incurring by such Person of Indebtedness,
including Laws relating to common contract carriers or the sale of electricity,
gas, steam, water or other public utility services. Neither US Borrower, Term
Borrower, Canadian Revolver Borrower, nor any other Restricted Person is subject
to regulation under the Federal Power Act which would violate, result in a
default of, or prohibit the effectiveness or the performance of any of the
provisions of the Loan Documents.
Section 5.18. Insider. No Restricted Person, nor any Person having
-------
"control" (as that term is defined in 12 U.S.C. (S) 375b(9) or in regulations
promulgated pursuant thereto) of any Restricted Person, is a "director" or an
"executive officer" or "principal shareholder" (as those terms are defined in 12
U.S.C. (S) 375b(8) or (9) or in regulations promulgated pursuant thereto) of any
Lender, of a bank holding company of which any Lender is a Subsidiary or of any
Subsidiary of a bank holding company of which any Lender is a Subsidiary.
Section 5.19. Solvency. Upon giving effect to the issuance of the Notes,
--------
the execution of the Loan Documents by US Borrower, Term Borrower, Canadian
Revolver Borrower, and each Guarantor and the consummation of the transactions
contemplated hereby, (i) US Borrower, Term Borrower, Canadian Revolver Borrower,
and each Guarantor will be solvent (as such term is used in applicable
bankruptcy, liquidation, receivership, insolvency or similar Laws), and the sum
of US Borrower's, Term Borrower's, Canadian Revolver Borrower's, and each
Guarantor's absolute and contingent liabilities, including the Obligations or
guarantees thereof, shall not exceed the fair market value of such Restricted
Person's assets, and (ii) US Borrower's, Term Borrower's, Canadian Revolver
Borrower's, and each Guarantor's capital should be adequate for the businesses
in which such Restricted Person is engaged and intends to be engaged. Neither
US Borrower, Term Borrower, Canadian Revolver Borrower, nor any Restricted
Person has incurred (whether under the Loan Documents or otherwise), nor does
any Restricted Person intend to incur or believe that it will incur, debts which
will be beyond its ability to pay as such debts mature.
77
Section 5.20. Credit Arrangements. The Disclosure Schedule contains a
-------------------
complete and correct list, as of the date of this Agreement, of each credit
agreement, loan agreement, indenture, purchase agreement, guaranty or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guaranty
by, any Restricted Person, or to which any Restricted Person is subject, other
than the Loan Documents, the Marketing Credit Agreement and the "Loan Documents"
as defined therein, and the aggregate principal or face amount outstanding or
which may become outstanding under each such arrangement is correctly described
in the Disclosure Schedule. No Restricted Person is subject to any restriction
under any credit agreement, loan agreement, indenture, purchase agreement,
guaranty or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guaranty by, any Affiliate, other than another Restricted Person.
ARTICLE VI - Affirmative Covenants
---------------------
To conform with the terms and conditions under which each Lender is willing
to have credit outstanding to US Borrower, Term Borrower, and Canadian Revolver
Borrower, and to induce each Lender to enter into this Agreement and extend
credit hereunder, Plains MLP, US Borrower, Term Borrower, and Canadian Revolver
Borrower, covenant and agree that until the full and final payment of the
Obligations and the termination of this Agreement, unless Majority Lenders, or
all Lenders as required under Section 10.1, have previously agreed otherwise:
Section 6.1. Payment and Performance. Each Restricted Person will pay
-----------------------
all amounts due under the Loan Documents, to which it is a party, in accordance
with the terms thereof and will observe, perform and comply with every covenant,
term and condition expressed in the Loan Documents to which it is a party.
Section 6.2. Books, Financial Statements and Reports. Each Restricted
---------------------------------------
Person will at all times maintain full and accurate books of account and
records. Plains MLP will maintain and will cause its Subsidiaries to maintain a
standard system of accounting, will maintain its Fiscal Year, and will furnish
the following statements and reports to each Lender at Restricted Person's
expense:
(a) As soon as available, and in any event within ninety (90) days
after the end of each Fiscal Year (i) complete Consolidated financial
statements of Plains MLP together with all notes thereto, prepared in
reasonable detail in accordance with GAAP, together with an unqualified
opinion, based on an audit using generally accepted auditing standards, by
PricewaterhouseCoopers LLP, or other independent certified public
accountants selected by General Partner and acceptable to Majority Lenders,
stating that such Consolidated financial statements have been so prepared
and (ii) supporting unaudited consolidating balance sheets and statements
of income of each other Restricted Person (except for any Restricted Person
whose financial statements are substantially the same as those of Plains
MLP). These financial statements shall contain a Consolidated and
consolidating balance sheet as of the end of such Fiscal Year and
Consolidated and consolidating statements of earnings for such Fiscal Year.
Such Consolidated financial
78
statements shall set forth in comparative form the corresponding figures
for the preceding Fiscal Year. In addition, within ninety (90) days after
the end of each Fiscal Year Plains MLP will furnish a certificate signed by
such accountants (i) stating that they have read this Agreement, (ii)
containing calculations showing compliance (or non-compliance) at the end
of such Fiscal Year with the requirements of Sections 7.11 through 7.14,
inclusive, and (iii) further stating that in making their examination and
reporting on the Consolidated financial statements described above they
obtained no knowledge of any Default existing at the end of such Fiscal
Year, or, if they did so conclude that a Default existed, specifying its
nature and period of existence.
(b) As soon as available, and in any event within forty-five (45)
days after the end of each of the first three Fiscal Quarters of each
Fiscal Year, (i) Plains MLP's Consolidated balance sheet as of the end of
such Fiscal Quarter and Consolidated statements of Plains MLP's earnings
and cash flows for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, and (ii) supporting consolidating balance sheets and statements of
income of each other Restricted Person (except for any Restricted Person
whose financial statements are substantially the same as those of Plains
MLP), all in reasonable detail and prepared in accordance with GAAP,
subject to changes resulting from normal year-end adjustments; and as soon
as available, and in any event within forty-five (45) days after the end of
the last Fiscal Quarter of each Fiscal Year, Plains MLP's unaudited
Consolidated balance sheet as of the end of such Fiscal Quarter and income
statement for such Fiscal Quarter and for the period from the beginning of
the current Fiscal Year to the end of such Fiscal Quarter. In addition
Plains MLP will, together with each such set of financial statements and
each set of financial statements furnished under subsection (a) of this
section, furnish a certificate in the form of Exhibit F signed by the chief
financial officer, principal accounting officer or treasurer of General
Partner stating that such financial statements are accurate and complete in
all material respects (subject to normal year-end adjustments), stating
that he has reviewed the Loan Documents, containing calculations showing
compliance (or non-compliance) at the end of such Fiscal Quarter with the
requirements of Sections 7.11 through 7.14, inclusive and stating that no
Default exists at the end of such Fiscal Quarter or at the time of such
certificate or specifying the nature and period of existence of any such
Default.
(c) Promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by Plains MLP to its
unit holders and all registration statements, periodic reports and other
statements and schedules filed by Plains MLP with any securities exchange,
the Securities and Exchange Commission or any similar governmental
authority.
(d) As soon as available, and in any event within ninety (90) days
after the end of each Fiscal Year, a five-year business and financial plan
for Plains MLP (in form reasonably satisfactory to Administrative Agent),
prepared or caused to be prepared by a senior financial officer thereof,
setting forth for the first year thereof, quarterly financial
79
projections and budgets for Plains MLP, and thereafter yearly financial
projections for the next four Fiscal Years.
(e) As soon as available, and in any event within forty-five (45)
days after the end of each month, throughput volume reports setting forth
in detail pipeline volumes of Petroleum Products delivered by Restricted
Persons for such month in connection with, and transportation fees charged
and margins realized by the Restricted Persons for such month delivered
through all pipeline facilities of Plains MLP and its Subsidiaries.
(f) As soon as available, and in any event within forty-five (45)
days after the end of each Fiscal Quarter, a report setting forth volumes
and margins for all marketing activities of Restricted Persons.
(g) As soon as available, and in any event within thirty (30) days
after the end of each Fiscal Year, an environmental compliance certificate
signed by the president or chief executive officer of General Partner in
the form attached hereto as Exhibit F. Further, if requested by
Administrative Agent, Restricted Persons shall permit and cooperate with an
environmental and safety review made in connection with the operations of
Restricted Persons' properties one time during each Fiscal Year, by Pilko &
Associates, Inc. or other consultants selected by Administrative Agent
which review shall, if requested by Administrative Agent, be arranged and
supervised by environmental legal counsel for Administrative Agent, all at
Restricted Persons' cost and expense. The consultant shall render a verbal
or written report, as specified by Administrative Agent, based upon such
review at Restricted Persons' cost and expense and a copy thereof will be
provided to Restricted Persons.
(h) Concurrently with the annual renewal of Restricted Persons'
insurance policies, Restricted Persons shall at their own cost and expense,
if requested by Administrative Agent in writing, cause a certificate or
report to be issued by Administrative Agent's professional insurance
consultants or other insurance consultants satisfactory to Administrative
Agent certifying that Restricted Persons' insurance for the next succeeding
year after such renewal (or for such longer period for which such insurance
is in effect) complies with the provisions of this Agreement and the
Security Documents.
(i) As soon as available, and in any event within thirty-five (35)
days after the end of each calendar month, a Consolidated statement of
Plains MLP's earnings for such calendar month in form satisfactory to
Administrative Agent.
(j) By 10:00 a.m., Boston Massachusetts time, each Monday, a report
on a ▇▇▇▇ to market basis of all Floating Rate Contracts as of the close of
business on the previous Friday, and together with such report a complete
list of all net realized losses on any Floating Rate Contracts for the
prior twelve months in form satisfactory to Administrative Agent.
80
Section 6.3. Other Information and Inspections. In each case subject to
---------------------------------
the last sentence of this Section 6.3, each Restricted Person will furnish to
each Lender any information which Administrative Agent or any Lender may from
time to time request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Restricted Persons' businesses and
operations. In each case subject to the last sentence of this Section 6.3, each
Restricted Person will permit representatives appointed by Administrative Agent
(including independent accountants, auditors, agents, attorneys, appraisers and
any other Persons) to visit and inspect during normal business hours any of such
Restricted Person's property, including its books of account, other books and
records, and any facilities or other business assets, and to make extra copies
therefrom and photocopies and photographs thereof, and to write down and record
any information such representatives obtain, and each Restricted Person shall
permit Administrative Agent or its representatives to investigate and verify the
accuracy of the information furnished to Administrative Agent or any Lender in
connection with the Loan Documents and to discuss all such matters with its
officers, employees and, upon prior notice to US Borrower, Term Borrower, or
Canadian Revolver Borrower, its representatives. Without limitation of the
foregoing, within one hundred twenty (120) days after the end of each Fiscal
Year, and in addition once during each Fiscal Year, if requested by
Administrative Agent at the instruction of Majority Lenders, US Borrower, Term
Borrower, and Canadian Revolver Borrower, shall permit commercial financial
examiners appointed by Administrative Agent to conduct a commercial finance
examination of the business and assets of Restricted Persons and in connection
with such examination to have full access to and the right to examine, audit,
make abstracts and copies from, and inspect Restricted Persons' records, files,
books of account and all other documents, instruments and agreements to which a
Restricted Person is a party. US Borrower, Term Borrower, or Canadian Revolver
Borrower, shall pay all reasonable costs and expenses of Administrative Agent
associated with any such examination. Each of the foregoing inspections and
examinations shall be made subject to compliance with applicable safety
standards and the same conditions applicable to any Restricted Person in respect
of property of that Restricted Person on the premises of Persons other than a
Restricted Person or an Affiliate of a Restricted Person, and all information,
books and records furnished or requested to be furnished, or of which copies,
photocopies or photographs are made or requested to be made, all information to
be investigated or verified and all discussions conducted with any officer,
employee or representative of any Restricted Person shall be subject to any
applicable attorney-client privilege exceptions which the Restricted Person
determines is reasonably necessary and compliance with conditions to disclosures
under non-disclosure agreements between any Restricted Person and Persons other
than a Restricted Person or an Affiliate of a Restricted Person and the express
undertaking of each Person acting at the direction of or on behalf of any Lender
Party to be bound by the confidentiality provisions of Section 10.6 of this
Agreement.
Section 6.4. Notice of Material Events and Change of Address. Each
-----------------------------------------------
Restricted Person will notify each Lender Party, not later than five (5)
Business Days after any executive officer of Restricted Persons has knowledge
thereof, stating that such notice is being given pursuant to this Agreement, of:
(a) the occurrence of any Material Adverse Change,
81
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed by any
Restricted Person or of any default by any Restricted Person under any
indenture, mortgage, agreement, contract or other instrument to which any
of them is a party or by which any of them or any of their properties is
bound, if such acceleration or default could cause a Material Adverse
Change,
(d) the occurrence of any Termination Event,
(e) Under any Environmental Law, any claim of the Dollar Equivalent
of $1,000,000 or more, any notice of potential liability which might be
reasonably likely to exceed such amount, or any other material adverse
claim asserted against any Restricted Person or with respect to any
Restricted Person's properties taken as a whole, and
(f) the filing of any suit or proceeding, or the assertion in writing
of a claim against any Restricted Person or with respect to any Restricted
Person's properties in which an adverse decision reasonably could be
expected to cause a Material Adverse Change.
Upon the occurrence of any of the foregoing Restricted Persons will take all
necessary or appropriate steps to remedy promptly any such Material Adverse
Change, Default, acceleration, default or Termination Event, to protect against
any such adverse claim, to defend any such suit or proceeding, and to resolve
all controversies on account of any of the foregoing. Restricted Persons will
also notify Administrative Agent and Administrative Agent's counsel in writing
at least twenty Business Days prior to the date that any Restricted Person
changes its name or the location of its chief executive office or principal
place of business or the place where it keeps its books and records concerning
the Collateral, furnishing with such notice any necessary financing statement
amendments or requesting Administrative Agent and its counsel to prepare the
same.
Section 6.5. Maintenance of Properties. Each Restricted Person will
-------------------------
maintain, preserve, protect, and keep all Collateral and all other property used
or useful in the conduct of its business in good condition (ordinary wear and
tear excepted) and in compliance with all applicable Laws, and will from time to
time make all repairs, renewals and replacements needed to enable the business
and operations carried on in connection therewith to be promptly and
advantageously conducted at all times.
Section 6.6. Maintenance of Existence and Qualifications. Each
-------------------------------------------
Restricted Person will maintain and preserve its existence and its rights and
franchises in full force and effect and will qualify to do business in all
states or jurisdictions where required by applicable Law, except where the
failure so to qualify will not cause a Material Adverse Change.
Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Restricted
-----------------------------------------
Person will (a) timely file all required tax returns (including any extensions);
(b) timely pay all taxes, assessments, and other governmental charges or levies
imposed upon it or upon its income,
82
profits or property; (c) within one hundred twenty (120) days after the date
such goods are delivered or such services are rendered, pay all Liabilities owed
by it on ordinary trade terms to vendors, suppliers and other Persons providing
goods and services used by it in the ordinary course of its business; (d) pay
and discharge when due all other Liabilities now or hereafter owed by it, other
than royalty payments suspended in the ordinary course of business; and (e)
maintain appropriate accruals and reserves for all of the foregoing in
accordance with GAAP. Each Restricted Person may, however, delay paying or
discharging any of the foregoing so long as it is in good faith contesting the
validity thereof by appropriate proceedings, if necessary, and has set aside on
its books adequate reserves therefor which are required by GAAP.
Section 6.8. Insurance. Each Restricted Person shall at all times
---------
maintain insurance for its property in accordance with the Insurance Schedule,
which insurance shall be by financially sound and reputable insurers. Each
Restricted Person will maintain any additional insurance coverage as described
in the respective Security Documents. Upon demand by Administrative Agent any
insurance policies covering Collateral shall be endorsed (a) to provide for
payment of losses to Administrative Agent as its interests may appear, (b) to
provide that such policies may not be canceled or reduced or affected in any
material manner for any reason without fifteen days prior notice to
Administrative Agent, and (c) to provide for any other matters specified in any
applicable Security Document or which Administrative Agent may reasonably
require. Each Restricted Person shall at all times maintain insurance against
its liability for injury to persons or property in accordance with the Insurance
Schedule, which insurance shall be by financially sound and reputable insurers.
Without limiting the foregoing, each Restricted Person shall at all time
maintain liability insurance in accordance with the Insurance Schedule.
Section 6.9. Performance on Borrower's Behalf. If any Restricted Person
--------------------------------
fails to pay any taxes, insurance premiums, expenses, attorneys' fees or other
amounts it is required to pay under any Loan Document, Administrative Agent may
pay the same after notice of such payment by Administrative Agent is given to US
Borrower. US Borrower shall immediately reimburse Administrative Agent for any
such payments and each amount paid by Administrative Agent shall constitute an
Obligation owed hereunder which is due and payable on the date such amount is
paid by Administrative Agent.
Section 6.10. Interest. Each of US Borrower, Term Borrower, and Canadian
--------
Revolver Borrower hereby promises to each Lender to pay interest at the Default
Rate on all Obligations (including Obligations to pay fees or to reimburse or
indemnify any Lender) which such Person has in this Agreement promised to pay to
such Lender and which are not paid when due. Such interest shall accrue from
the date such Obligations become due until they are paid.
Section 6.11. Compliance with Agreements and Law. Each Restricted Person
----------------------------------
will perform all material obligations it is required to perform under the terms
of each indenture, mortgage, deed of trust, security agreement, lease, and
franchise, and each material agreement, contract or other instrument or
obligation to which it is a party or by which it or any of its properties is
bound. Each Restricted Person will conduct its business and affairs in
compliance with all Laws applicable thereto.
83
Section 6.12. Environmental Matters; Environmental Reviews.
--------------------------------------------
(a) Each Restricted Person will comply in all material respects with
all Environmental Laws now or hereafter applicable to such Restricted
Person as well as all contractual obligations and agreements with respect
to environmental remediation or other environmental matters, and shall
obtain, at or prior to the time required by applicable Environmental Laws,
all environmental, health and safety permits, licenses and other
authorizations necessary for its operations and will maintain such
authorizations in full force and effect.
(b) Each Restricted Person will promptly furnish to Administrative
Agent all written notices of violation, orders, claims, citations,
complaints, penalty assessments, suits or other proceedings received by any
Restricted Person or General Partner, or of which it has notice, pending or
threatened against any Restricted Person, the potential liability of which
exceeds the Dollar Equivalent of $1,000,000 or would cause a Material
Adverse Change if resolved adversely against any Restricted Person, by any
governmental authority with respect to any alleged violation of or non-
compliance with any Environmental Laws or any permits, licenses or
authorizations in connection with its ownership or use of its properties or
the operation of its business.
(c) Each Restricted Person will promptly furnish to Administrative
Agent all requests for information, notices of claim, demand letters, and
other notifications, received by any Restricted Person or General Partner
in connection with its ownership or use of its properties or the conduct of
its business, relating to potential responsibility with respect to any
investigation or clean-up of Hazardous Material at any location, the
potential liability of which exceeds the Dollar Equivalent of $1,000,000 or
would cause a Material Adverse Change if resolved adversely against any
Restricted Person.
Section 6.13. Evidence of Compliance. Subject to the last sentence of
----------------------
Section 6.3, each Restricted Person will furnish to each Lender at such
Restricted Person's expense all evidence which Administrative Agent from time to
time reasonably requests in writing as to the accuracy and validity of or
compliance with all representations, warranties and covenants made by any
Restricted Person in the Loan Documents, the satisfaction of all conditions
contained therein, and all other matters pertaining thereto.
Section 6.14. Agreement to Deliver Security Documents. Restricted
---------------------------------------
Persons will deliver to further secure the Obligations whenever requested by
Administrative Agent in its sole and absolute discretion, deeds of trust,
mortgages, chattel mortgages, security agreements, financing statements and
other Security Documents in form and substance satisfactory to Administrative
Agent for the purpose of granting, confirming, and perfecting first and prior
liens or security interests in any real or personal property now owned or
hereafter acquired by any Restricted Person.
Section 6.15. Perfection and Protection of Security Interests and Liens.
---------------------------------------------------------
Each Restricted Person will from time to time deliver to Administrative Agent
any financing statements,
84
continuation statements, extension agreements and other documents, properly
completed and executed (and acknowledged when required) by Restricted Persons in
form and substance satisfactory to Administrative Agent, which Administrative
Agent requests for the purpose of perfecting, confirming, or protecting any
Liens or other rights in Collateral securing any Obligations.
Section 6.16. Bank Accounts; Offset. To secure the repayment of the
---------------------
Obligations, each Restricted Person hereby grants to each Lender a security
interest, a lien, and a right of offset, each of which shall be in addition to
all other interests, liens, and rights of any Lender at common Law, under the
Loan Documents, or otherwise, and each of which shall be upon and against (a)
any and all moneys, securities or other property (and the proceeds therefrom) of
such Restricted Person now or hereafter held or received by or in transit to any
Lender from or for the account of such Restricted Person, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, (b) any and
all deposits (general or special, time or demand, provisional or final) of such
Restricted Person with any Lender, and (c) any other credits and claims of such
Restricted Person at any time existing against any Lender, including claims
under certificates of deposit. At any time and from time to time during the
continuance of any Event of Default, each Lender is hereby authorized to
foreclose upon, or to offset against the Obligations then due and payable (in
either case without notice to any Restricted Person), any and all items herein
above referred to. The remedies of foreclosure and offset are separate and
cumulative, and either may be exercised independently of the other without
regard to procedures or restrictions applicable to the other.
Section 6.17. Guaranties of Subsidiaries. Each Subsidiary of Plains MLP
--------------------------
now existing or created, acquired or coming into existence after the date hereof
shall, promptly upon request by Administrative Agent, execute and deliver to
Administrative Agent an absolute and unconditional guaranty of the timely
repayment of the Obligations and the due and punctual performance of the
obligations of US Borrower, Term Borrower, and Canadian Revolver Borrower
hereunder (in each case for which such Subsidiary is not a borrower, account
party or similar primary and direct obligor), which guaranty shall be
satisfactory to Administrative Agent in form and substance. Each Subsidiary of
Plains MLP existing on the date hereof shall duly execute and deliver such a
guaranty prior to the making of any Loan hereunder (in each case for which such
Subsidiary is not a borrower, account party or similar primary and direct
obligor). Plains MLP will cause each of its Subsidiaries to deliver to
Administrative Agent, simultaneously with its delivery of such a guaranty,
written evidence satisfactory to Administrative Agent and its counsel that such
Subsidiary has taken all corporate, limited liability company or partnership
action necessary to duly approve and authorize its execution, delivery and
performance of such guaranty and any other documents which it is required to
execute.
Section 6.18. Compliance with Agreements. Each Restricted Person shall
--------------------------
observe, perform or comply with any agreement with any Person or any term or
condition of any instrument, if such agreement or instrument is materially
significant to such Restricted Person or to Restricted Persons on a Consolidated
basis or materially significant to any Guarantor, unless
85
any such failure to so observe, perform or comply is remedied within the
applicable period of grace (if any) provided in such agreement or instrument.
Section 6.19. Rents. By the terms of the various Security Documents,
-----
certain Restricted Persons are and will be assigning to Administrative Agent,
for the benefit of Lender Parties, all of the "Rents" (as defined therein)
accruing to the property covered thereby. Notwithstanding any such assignments,
so long as no Default has occurred and is continuing, (i) such Restricted
Persons may continue to receive and collect from the payors of such Rents all
such Rents, subject, however, to the Liens created under the Security Documents,
which Liens are hereby affirmed and ratified, and free and clear of such Liens,
use the proceeds of the Rents, and (ii) the Administrative Agent will not notify
the obligors of such Rents or take any other action to cause proceeds thereof to
be remitted to the Administrative Agent. Upon the occurrence of a Default,
Administrative Agent may exercise all rights and remedies granted under the
Security Documents, including the right to obtain possession of all Rents then
held by such Restricted Persons or to receive directly from the payors of such
Rents all other Rents until such time as such Default is no longer continuing.
If the Administrative Agent shall receive any Rent proceeds from any payor at
any time other than during the continuance of a Default, then it shall notify US
Borrower thereof and (i) upon request and pursuant to the instructions of US
Borrower, it shall, if no Default is then continuing, remit such proceeds to US
Borrower and (ii) at the request and expense of US Borrower, execute and deliver
a letter to such payors confirming Restricted Persons' right to receive and
collect Rents until otherwise notified by Administrative Agent. In no case
shall any failure, whether purposed or inadvertent, by Administrative Agent to
collect directly any such Rents constitute in any way a waiver, remission or
release of any of its rights under the Security Documents, nor shall any release
of any Rents by Administrative Agent to such Restricted Persons constitute a
waiver, remission, or release of any other Rents or of any rights of
Administrative Agent to collect other Rents thereafter.
Section 6.20. Working Capital Borrowings. For an economically meaningful
--------------------------
period of time in each Fiscal Year, as reasonably determined by the General
Partner, the aggregate outstanding principal balance of all Working Capital
Borrowings shall be reduced to a relatively small amount as may be reasonably
specified by the General Partner.
Section 6.21. Canadian Revolver Advances. For at least one Business Day
--------------------------
each year during the Canadian Commitment Period, the outstanding principal
balance of the Canadian Revolver Advances (not including any Canadian Revolver
Advances made in respect of Canadian Cash and Carry Purchases or margin
deposits) will not exceed the Dollar Equivalent of $5,000,000.
ARTICLE VII - Negative Covenants
------------------
To conform with the terms and conditions under which each Lender is willing
to have credit outstanding to US Borrower, Term Borrower, and Canadian Revolver
Borrower and to induce each Lender to enter into this Agreement and make the
Loans, Plains, US Borrower, Term Borrower, and Canadian Revolver Borrower
covenant and agree that until the full and final
86
payment of the Obligations and the termination of this Agreement, unless
Majority Lenders, or all Lenders as required under Section 10.1, have previously
agreed otherwise:
Section 7.1. Indebtedness. No Restricted Person will in any manner owe
------------
or be liable for Indebtedness except:
(a) the Obligations;
(b) Indebtedness arising under Hedging Contracts (i) permitted under
Section 7.3 or (ii) consisting of options, swaps, collars and similar
instruments that relate to Petroleum Products and are either referred to in any
of clauses (i) - (iii) of Section 7.15(a) or permitted by Section 7.15(b) or
(c);
(c) Indebtedness of any Restricted Person owing to another Restricted
Person;
(d) Liabilities with respect to obligations to deliver Petroleum Products
or to render terminaling or storage services in consideration for advance
payments to a Restricted Person provided such delivery or rendering, as
applicable, is to be made within 60 days (or, as to liquefied petroleum gases,
within 365 days) after such payment;
(e) Indebtedness under the Marketing Credit Agreement, provided that the
principal amount of loans and face amount of letters of credit thereunder at any
one time outstanding shall not exceed $300,000,000;
(f) guaranties by Plains MLP, any Borrower or any Guarantor of trade
payables of any other Restricted Person incurred and paid in the ordinary course
of business on ordinary trade terms;
(g) Indebtedness owing by Plains MLP or any other Restricted Person under
its senior unsecured privately placed or public term Indebtedness (and any
Indebtedness issued in exchange therefor), provided (1) such Indebtedness shall
not permit optional redemption by the issuer or mandatory redemption by any
holder thereof solely at the option of any such holder, nor any stated maturity,
in each case prior to the Maturity Date, (2) the indenture governing such
Indebtedness shall have no covenants or other requirements more onerous than the
Loan Documents, (3) the aggregate outstanding face amount of such Indebtedness
shall not exceed $400,000,000, (4) all of the net proceeds of such originally
issued Indebtedness shall be used to repay US Loans, (5) upon the receipt of net
proceeds from the original issuance of such Indebtedness, the US Commitment
shall be reduced by an 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, and (6) both immediately prior to and immediately
following the consummation of such offering, no Default or Event of Default
shall have occurred and be continuing; and
87
(h) other Indebtedness not to exceed in the aggregate in respect of all
Restricted Persons the principal amount of the Dollar Equivalent of $25,000,000
at any one time outstanding; provided, no such other Indebtedness under this
clause (h) in respect of borrowed money (1) by Canadian Revolver Borrower shall
exceed in the aggregate the principal amount of $10,000,000 at any one time
outstanding, or (2) by a Restricted Person other than US Borrower, Canadian
Revolver Borrower or Restricted Persons acquired after the date hereof shall
exceed in the aggregate the principal amount of $5,000,000 at any one time
outstanding.
Section 7.2. Limitation on Liens. No Restricted Person will create,
-------------------
assume or permit to exist any Lien upon any of the properties or assets which it
now owns or hereafter acquires, except the following ("Permitted Liens"):
(a) Liens created pursuant to this Agreement or the Security
Documents and Liens existing on the date of this Agreement and listed in
the Disclosure Schedule or Liens created pursuant to the Marketing Credit
Agreement or the "Security Documents" as defined in the Marketing Credit
Agreement, subject to the terms of the Intercreditor Agreement referred to
in Section 4.1(m).
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or the validity of which is being
contested in good faith and by appropriate proceedings, if necessary, for
which adequate reserves are maintained on the books of any Restricted
Person in accordance with GAAP;
(c) pledges or deposits of cash or securities under worker's
compensation, unemployment insurance or other social security legislation;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's, or other like Liens (including without limitation,
Liens on property of any Restricted Person in the possession of storage
facilities, pipelines or barges) arising in the ordinary course of business
for amounts which are not more than 60 days past due or the validity of
which is being contested in good faith and by appropriate proceedings, if
necessary, and for which adequate reserves are maintained on the books of
any Restricted Person in accordance with GAAP;
(e) Liens under or with respect to accounts with brokers or
counterparties with respect to Hedging Contracts consisting of cash,
commodities or futures contracts, options, securities, instruments, and
other like assets securing only Hedging Contracts permitted under Section
7.1;
(f) deposits of cash or securities to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
88
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of real property or minor imperfections in title thereto which, in the
aggregate, are not material in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of any Restricted
Person;
(h) Liens in respect of operating leases and Capital Leases permitted
under Section 7.1;
(i) Liens upon any property or assets acquired after the date hereof
by a Restricted Person, each of which either (i) existed on such property
or asset before the time of its acquisition and was not created in
anticipation thereof, or (ii) was created solely for the purpose of
securing Indebtedness representing, or incurred to finance, refinance or
refund, the cost (including the cost of construction) of such property or
asset; provided that no such Lien shall extend to or cover any property or
asset of a Restricted Person other than the property or asset so acquired
(or constructed) and the Indebtedness secured thereby is permitted under
Section 7.1(g) hereof; and any extension, renewal, refinancing, refunding
or replacement (or successive extensions, renewals, refinancings,
refundings or replacements), in whole or part, of the foregoing, provided,
however, that such Liens shall not cover or secure any additional
Indebtedness, obligations, property or asset;
(j) rights reserved to or vested in any governmental authority by the
terms of any right, power, franchise, grant, license or permit, or by any
provision of law, to revoke or terminate any such right, power, franchise,
grant, license or permit or to condemn or acquire by eminent domain or
similar process;
(k) rights reserved to or vested by Law in any governmental authority
to in any manner, control or regulate in any manner any of the properties
of any Restricted Person or the use thereof or the rights and interests of
any Restricted Person therein, in any manner under any and all Laws;
(l) rights reserved to the grantors of any properties of any
Restricted Person, and the restrictions, conditions, restrictive covenants
and limitations, in respect thereto, pursuant to the terms, conditions and
provisions of any rights-of-way agreements, contracts or other agreements
therewith;
(m) inchoate Liens in respect of pending litigation or with respect
to a judgment which has not resulted in an Event of Default under Section
8.1; and
(n) Liens on property of US Borrower permitted pursuant to the terms
of the Marketing Credit Agreement.
89
Section 7.3. Hedging Contracts. No Restricted Person will be a party to
-----------------
or in any manner be liable on any Hedging Contract, except:
(a) Hedging Contracts entered into by a Restricted Person with the
purpose and effect of fixing interest rates on a principal amount of
indebtedness of such Restricted Person that is accruing interest at a
variable rate, provided that (i) the aggregate notional amount of such
contracts never exceeds one hundred percent (100%) of the anticipated
outstanding principal balance of the indebtedness to be hedged by such
contracts or an average of such principal balances calculated using a
generally accepted method of matching interest swap contracts to declining
principal balances, (ii) the floating rate index of each such contract
generally matches the index used to determine the floating rates of
interest on the corresponding indebtedness to be hedged by such contract
and (iii) each such contract is with a counterparty or has a guarantor of
the obligation of the counterparty who (unless such counterparty is a
Lender, a "Lender" as such term is defined in the Marketing Credit
Agreement, or an Affiliate of a Lender or "Lender" at the time such
contract is entered into) at the time the contract is made has long-term
unsecured and unenhanced debt obligations rated A or A2 or better,
respectively, by either Rating Agency or is otherwise acceptable to
Majority Lenders.
(b) Hedging Contracts entered into by a Canadian Subsidiary (or by a
Restricted Person on behalf of a Canadian Subsidiary) with the purpose and
effect of fixing foreign exchange rates on its reasonably anticipated net
revenues, and not for speculative purposes, provided that (i) no such
contract fixes an exchange rate for a term of more than 5 years, (ii) the
aggregate notional amount of such contracts (determined, in the case of
contracts that are not settled on a monthly basis, by a monthly proration
acceptable to Administrative Agent) for any single month never exceeds (A)
ninety percent (90%) of the reasonably anticipated net revenues to be
hedged by such contracts plus (B) one hundred percent (100%) of the
anticipated outstanding principal balance of the indebtedness to be hedged
by such contracts, and (iii) each such contract is with a counterparty or
has a guarantor of the obligation of the counterparty who (unless such
counterparty is a Lender, a "Lender" as such term is defined in the
Marketing Credit Agreement, or an Affiliate of a Lender or "Lender" at the
time such contract is entered into) at the time the contract is made has
long-term unsecured and unenhanced debt obligations rated A or A2 or
better, respectively, by either Rating Agency or is otherwise acceptable to
Majority Lenders.
(c) Hedging Contracts relating to heating oil used to hedge price
risk for fuel requirements of the truck fleet of a Restricted Person in the
ordinary course of business.
Section 7.4. Limitation on Mergers, Issuances of Securities. Except as
----------------------------------------------
expressly provided in this section, no Restricted Person will (a) enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), (b) acquire any
business or property from, or capital stock of, or be a party to any acquisition
of, any Person except for purchases of inventory and other property to be sold
or used in the ordinary course of business and Investments permitted under
Section 7.7 hereof or (c) sell,
90
transfer, lease, exchange, alienate or otherwise dispose of, in one transaction
or a series of transactions, any part of its business or property, whether now
owned or hereafter acquired, except for sales or transfers not prohibited by
under Section 7.5 hereof. Any Person, other than US Borrower, Term Borrower, or
Canadian Revolver Borrower that is a Subsidiary of a Restricted Person may,
however, be merged into or consolidated with (i) another Subsidiary of such
Restricted Person, so long as a Guarantor is the surviving business entity, or
(ii such Restricted Person, so long as such Restricted Person is the surviving
business entity. Plains MLP will not issue any securities other than (i) limited
partnership interests and any options or warrants giving the holders thereof
only the right to acquire such interests, (ii) general or subordinate
partnership interests issued to Resources or a Wholly Owned Subsidiary of
Resources and (iii) debt securities permitted by Section 7.1(g). No Subsidiary
of Plains MLP will issue any additional shares of its capital stock or other
securities or any options, warrants or other rights to acquire such additional
shares or other securities except a Subsidiary of a Restricted Person may issue
additional shares or other securities to such Restricted Person, to Plains MLP
or to General Partner so long as such Subsidiary is a Wholly Owned Subsidiary of
Plains MLP after giving effect thereto. No Subsidiary of US Borrower, Term
Borrower, or Canadian Revolver Borrower which is a partnership will allow any
diminution of Plains MLP's interest (direct or indirect) therein.
Notwithstanding the foregoing, Canadian Revolver Borrower may issue limited
partner interests to CanPet Energy Group (USA), Inc. or CanPet Energy Group Inc.
to effect the consummation of the CanPet Acquisition as set forth in the CanPet
Acquisition Documents, provided, such limited partner interests shall:
--------
(i) pay no cash dividend nor entitle the holder thereof to any cash
distribution, except upon dissolution (provided that the foregoing shall
not prevent the accrual of any such dividends or distributions);
(ii) not entitle the holder thereof to any right to manage or control
Canadian Revolver Borrower or vote with respect thereto; and
(iii) not be redeemable or exchangeable by the holder thereof for
cash or callable or subject to a put option for cash at the option of any
such holder.
Section 7.5. Limitation on Sales of Property. No Restricted Person will
-------------------------------
sell, transfer, lease, exchange, alienate or dispose of any Collateral or any of
its material assets or properties or any material interest therein except:
(a) equipment which is worthless or obsolete or no longer necessary or
useful to the proper conduct of its business or which is replaced by equipment
of equal suitability and value;
(b) inventory (including pipeline linefill) which is sold in the ordinary
course of business on ordinary trade terms;
(c) in other property which is sold for fair consideration not in the
aggregate in excess of the Dollar Equivalent of $10,000,000 in any Fiscal Year,
the sale of which will not materially
91
impair or diminish the value of the Collateral or any Restricted Person's
financial condition, business or operations; and
(d) sales or transfers, subject to the Security Documents, by a Person
(other than US Borrower) that is a Subsidiary of a Restricted Person to such
Restricted Person or to a Wholly Owned Subsidiary of such Restricted Person that
is a Guarantor.
No Restricted Person will sell, transfer or otherwise dispose of capital stock
of or interest in any of its Subsidiaries except to Plains MLP or a Wholly Owned
Subsidiary of Plains MLP; provided, in the event any limited partner interests
issued by Canadian Revolver Borrower to CanPet Energy Group (USA), Inc. or
CanPet Energy Group Inc. pursuant to Section 7.4 are exchanged for units issued
by Plains MLP, Lenders hereby consent to the contribution by Plains MLP to US
Borrower of any and all such partnership interests. No Restricted Person will
discount, sell, pledge or assign any notes payable to it, accounts receivable or
future income. So long as no Default then exists, Administrative Agent will, at
US Borrower's request and expense, execute a release, satisfactory to the
relevant Borrower and Administrative Agent, of any Collateral so sold,
transferred, leased, exchanged, alienated or disposed of pursuant to the clause
(a) or (c) of this Section.
Section 7.6. Limitation on Dividends and Redemptions. No Restricted
---------------------------------------
Person will declare or pay any dividends on, or make any other distribution in
respect of, any class of its capital stock or any partnership, limited liability
company or other interest in it, nor will any Restricted Person directly or
indirectly make any capital contribution of any nature to or purchase, redeem,
acquire or retire any shares of the capital stock of or partnership or limited
liability company interests in any Restricted Person (whether such interests are
now or hereafter issued, outstanding or created), or cause or permit any
reduction or retirement of the capital stock of any Restricted Person, while any
Loan or any US Commitment or any Canadian Commitment is outstanding.
Notwithstanding the foregoing, but subject to Section 7.5, (i) Subsidiaries of
Plains MLP, US Borrower, Term Borrower, Canadian Revolver Borrower or of any
Guarantor shall not be restricted, directly or indirectly, from declaring and
paying dividends or making any other distributions to Plains MLP, US Borrower,
Term Borrower, Canadian Revolver Borrower or any such Guarantor, respectively,
and to the General Partner pursuant to and in accordance with such Subsidiary's
partnership agreement, (ii) no Restricted Person shall be restricted from making
capital contributions of any nature to a Wholly Owned Subsidiary of such
Restricted Person that is a Guarantor, and (iii) so long as no Default or Event
of Default has occurred and is continuing or would result therefrom, Plains MLP
shall not be restricted from (A) distributing Available Cash (other than amounts
required to be applied as otherwise required in any Loan Document) to its
partners in accordance with the Partnership Agreement or (B) purchasing its
partnership units on the open market in connection with the Incentive and Option
Plans.
Section 7.7. Limitation on Investments and New Businesses. No Restricted
--------------------------------------------
Person will (a) make any expenditure or commitment or incur any obligation or
enter into or engage in any transaction except in the ordinary course of
business, (b) engage directly or indirectly in any business or conduct any
operations except in connection with or incidental to its present businesses and
operations, (c) make any acquisitions of or capital contributions to or other
92
Investments in any Person, other than Permitted Investments and Permitted
Acquisitions, or (d) make any acquisitions of properties other than Permitted
Acquisitions. All transactions permitted under the foregoing subsections (a)
through (d), inclusive, are subject to Section 7.5.
Section 7.8. Limitation on Credit Extensions. Except for Permitted
-------------------------------
Investments and Hedging Contracts permitted under Section 7.3(b) hereof, no
Restricted Person will extend credit, make advances or make loans other than
normal and prudent extensions of credit to customers buying goods and services
in the ordinary course of business or to another Restricted Person in the
ordinary course of business, which extensions shall not be for longer periods
than those extended by similar businesses operated in a normal and prudent
manner.
Section 7.9. Transactions with Affiliates. No Restricted Person will
----------------------------
engage in any material transaction with any of its Affiliates except: (a)
transactions among Plains MLP and Wholly Owned Subsidiaries of Plains MLP,
subject to the other provisions of this Agreement, (b) transactions governed by
the Affiliate Agreements, and (c) transactions entered into in the ordinary
course of business of such Restricted Person on terms which are no less
favorable to such Restricted Person than those which would have been obtainable
at the time in arm's-length transactions with Persons other than such
Affiliates.
Section 7.10. Prohibited Contracts. Except as expressly provided for in
--------------------
the Loan Documents and as described in the Disclosure Schedule, no Restricted
Person will, directly or indirectly, enter into, create, or otherwise allow to
exist any contract or other consensual restriction on the ability of any
Subsidiary of Plains MLP, including but not limited to US Borrower, Term
Borrower, Canadian Revolver Borrower and any Subsidiary of such Persons to: (a)
pay dividends or make other distributions to US Borrower, Term Borrower,
Canadian Revolver Borrower or Plains MLP, (b) redeem equity interests held in it
by US Borrower, Term Borrower, Canadian Revolver Borrower or Plains MLP, (c)
repay loans and other indebtedness owing by it to US Borrower, Term Borrower,
Canadian Revolver Borrower or Plains MLP, or (d) transfer any of its assets to
US Borrower, Term Borrower, Canadian Revolver Borrower or Plains MLP. No
Restricted Person will enter into any "take-or-pay" contract or other contract
or arrangement for the purchase of goods or services which obligates it to pay
for such goods or service regardless of whether they are delivered or furnished
to it other than contracts for pipeline capacity or for services in either case
reasonably anticipated to be utilized in the ordinary course of business. No
Restricted Persons will amend, modify or release any of the Affiliate
Agreements. No Restricted Person will amend or permit any amendment to any
contract or lease which releases, qualifies, limits, makes contingent or
otherwise detrimentally affects the rights and benefits of Administrative Agent
or any Lender under or acquired pursuant to any Security Documents. No ERISA
Affiliate will incur any obligation to contribute to any "multiemployer plan" as
defined in Section 4001 of ERISA that is subject to Title IV of ERISA.
Section 7.11. Current Ratio. The ratio of (i) the sum of Plains MLP's
-------------
Consolidated current assets plus the excess, if any, of the Total Revolver
Commitment over the Facility Usage to (ii) Plains MLP's Consolidated current
liabilities will never be less than 1.0 to 1.0. For purposes of this section,
Plains MLP's Consolidated current liabilities will be calculated without
including (a) any payments of principal on the Notes or Banker's Acceptances or
the notes under
93
the Marketing Credit Agreement which are required to be repaid within one year
from the time of calculation and (b) all Liabilities arising under permitted
Hedging Contracts. As used in this section, (x) "Total Revolver Commitment"
-------------------------
means the sum of (1) the Canadian Revolver Commitment plus (2) the US
Commitment, in each case as of the time of determination and (y) "Facility
--------
Usage" means, at the time in question, the sum of (1) the Canadian Revolver
-----
Facility Usage plus (2) the US Facility Usage.
Section 7.12. Debt Coverage Ratio. (a) At the end of any Fiscal Quarter,
-------------------
(b) on any date on which General Partner declares a distribution permitted under
Section 7.6 and (c) on the date of any Permitted Acquisition, both immediately
prior to and after giving effect to the consummation thereof, the Debt Coverage
Ratio will not be greater than:
(A) 4.75 to 1.0, in the case of any determination during the period
from the date hereof through and including September 29, 2001,
(B) 4.50 to 1.0, in the case of any determination from September 30,
2001 through and including June 29, 2002,
(C) 4.25 to 1.0, in the case of any determination from June 30, 2002
through and including December 30, 2002, and
(D) 4.00 to 1.0, in the case of any determination thereafter.
As used herein, "Debt Coverage Ratio" means the ratio of (a) Consolidated Funded
-------------------
Indebtedness to (b) Consolidated EBITDA for the four Fiscal Quarter period (or
other period specified below) most recently ended prior to the date of
determination for which financial statements contemplated by Section 6.2(a) or
(b) are available to Borrower; provided, for purposes of this Section 7.12, if,
--------
since the beginning of the four Fiscal Quarter period ending on the date for
which Consolidated EBITDA is determined, any Restricted Person shall have made
any asset disposition or acquisition, shall have consolidated or merged with or
into any Person (other than another Restricted Person), or shall have made any
disposition or acquisition of a Restricted Person, Consolidated EBITDA shall be
calculated giving pro forma effect thereto as if the disposition, acquisition,
consolidation or merger had occurred on the first day of such period. Such pro
forma effect shall include adjustments with respect to management fees
previously distributed with respect to the assets subject to the CanPet
Acquisition and the acquisition of the remaining 50% of the Manito Pipeline in
mid calendar year 2000, and shall otherwise be determined (i) in good faith by
the chief financial officer of Borrower, and (ii) without giving effect to any
anticipated or proposed change in operations, revenues, expenses or other items
included in the computation of Consolidated EBITDA, except with the consent of
Majority Lenders.
Section 7.13. Interest Coverage Ratio. The ratio of (a) Consolidated
-----------------------
EBITDA to (b) Interest Expense for each four Fiscal Quarter period ending on or
after March 31, 2001 will not be less than 2.75 to 1.0.
94
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, 0.73 to 1.0 at any time; and
(ii) from and after December 31, 2002, 0.65 to 1.0 at any time.
Section 7.15. Open Position; Certain Permitted Financial Instruments;
-------------------------------------------------------
NYMEX Transactions.
------------------
(a) Open Position. No Restricted Person shall at any time have any
-------------
Open Positions; provided, however, that a Restricted Person may have:
(i) Physical inventories of Petroleum Products (A) consisting
of tank bottoms and pipeline linefill requirements, in each case
classified as a long-term asset, (B) working inventory of up to
1,400,000 barrels in the aggregate at any time, (C) excess inventory
of up to 200,000 barrels in the aggregate at any time resulting from
crude gathering receipts in excess of scheduled quantities, provided
that such Restricted Person shall establish an Offsetting Position
with respect to such quantities within five business days following
identification of such inventory, but in any event not later than the
20/th/ day following the month in which such excess volumes were
received and (D) Hedged Eligible Inventory.
(ii) Floating Price Contracts to purchase or sell Petroleum
Products in the Current Trading Month; provided that, such Floating
Price Contracts either (A) have an Offsetting Position by the 26th day
of the month preceding the month of receipt or delivery, or (B) are
scheduled to be stored at a Plains Terminal or in pipelines Currently
Approved by Majority Lenders and are hedged in the delivery month with
NYMEX contracts; and further provided that such Floating Price
Contracts relating to the sale of Petroleum Products for the Current
Trading Month do not exceed purchases by more than 15,000 barrels per
day.
(iii) Floating Price Contracts to purchase or sell Petroleum
Products to be received or delivered after the Current Trading Month,
but within the twelve months following the Current Trading Month
provided that (A) such contracts are at the then market price and (B)
at any point in time the sum of (x) net realized losses relating to
such contracts within the preceding twelve months (excluding
Physically Covered Near Term Floating Price Contract Losses) and (y)
▇▇▇▇ to market exposure relating to such contracts (excluding
aggregate ▇▇▇▇ to market exposure of up to the Dollar Equivalent of
$20,000,000 relating to Near Term Floating Price Contracts) does not,
at any time, exceed the Dollar Equivalent of $5,000,000.
95
As used herein, "Current Trading Month" means (i) with respect to the first
---------------------
twenty-five days of any calendar month, the next following calendar month
and (ii) with respect to the period from the 26/th/ day of a calendar month
through the last day of such month, the second calendar month next
following such month (for example, for the period from January 26/th/
through February 25/th/, the Current Trading Month is March), "Floating
--------
Price Contract" means (i) a purchase or sale contract based upon a daily
--------------
index such as a posted price or NYMEX price from time to time in effect
during the delivery month and (ii) a NYMEX spread transaction in which the
length of time between the offsetting purchase and sale obligations do not
exceed twelve months, "Physically Covered Near Term Floating Price Contract
----------------------------------------------------
Losses" means net realized losses incurred in the Current Trading Month
------
with respect to Near Term Floating Price Contracts entered into prior to
such Current Trading Month, for which the Company expects to have an
offsetting physical position in the delivery month originally specified in
such Near Term Floating Price Contract, and "Near Term Floating Price
------------------------
Contract" means (A) Floating Price Contracts within the First Trading Month
--------
following the Current Trading Month, covering volumes up to 60% of
projected crude gathering receipts for crude under 30-day evergreen
floating price contracts for the First Trading Month; and (B) Floating
Price Contracts within the Second Trading Month following the Current
Trading Month, covering volumes up to 40% of projected crude gathering
receipts for crude under 30-day evergreen floating price contracts for the
Second Trading Month. Using the same example as that used for Current
Trading Month, the First Trading Month following the Current Trading Month
for the same period is April and the Second Trading Month following the
Current Trading Month for the same period is May.
(b) Certain Permitted Financial Instruments. No Restricted Person
---------------------------------------
will write (i.e. sell) or otherwise participate in any swap, collar or
similar agreement relating to Petroleum Products, or write (i.e. sell) any
option, unless, with respect thereto, (i) such Restricted Person has an
Offsetting Position in crude volumes for which there is no basis risk
between such financial instrument and such Offsetting Position and (ii) the
counter-party (or guarantor to the obligations of such counter-party) at
the time such financial instrument is made (A) has one or more long term
unsecured and unenhanced debt obligations rated A or A2 or better,
respectively, by either Rating Agency, or (B) is a Lender, a "Lender" as
such term is defined in the Marketing Credit Agreement, or an Affiliate of
a Lender or "Lender", or (C) is listed in the Disclosure Schedule.
(c) NYMEX Transactions. No Restricted Person will enter in to any
------------------
NYMEX contracts that are time-spread positions to each other, except (i) in
the case where the sale obligation is in the future month of the purchase
obligation, where both (A) the length of time between the purchase and sale
contracts does not exceed thirty-six months and (B) the volume does not in
the aggregate exceed the lesser of 3,000,000 barrels or 30% of the Plains
Terminals' storage capacity and (ii) in the case where the purchase
obligation is in the future month of the sale obligation, where the length
of time between the sale and purchase contracts does not exceed twelve
months. No Restricted Person will convert a NYMEX position to a physical
position by way of an "exchange for physicals" or an "alternative delivery
procedure"unless the credit extended in connection with such
96
physical position would comply with the credit requirements of the
definition of "Approved Eligible Receivables".
Section 7.16. 3794865 Canada Ltd. Notwithstanding anything contained
-------------------
herein or in any other Loan Document, 3794865 Canada Ltd., a corporation
organized under Canadian federal law and a wholly-owned Subsidiary of Term
Borrower, shall not: (a) own any assets, other than the Certificate of Public
Convenience and Need issued by the National Energy Board of Canada with respect
to the Wascana pipeline (the "Certificate"), (b) owe or be liable for any
Indebtedness, (c) create, assume or permit to exist any Lien upon any of the
properties or assets which it now owns or hereafter acquires, (d) sell,
transfer, lease, exchange, alienate or dispose of the Certificate or any rights
thereunder or associated therewith, except to Term Borrower or Canadian Revolver
Borrower, (e) engage in any other business activities of any kind, other than
entering into an operating agreement with Canadian Revolver Borrower with
respect to the operation of the Wascana pipeline (the "Wascana Operating
Agreement") and such other activities as may be necessary in order to maintain
and preserve the Certificate and its rights and franchises thereunder in full
force and effect. Promptly upon any change in applicable Law resulting in Term
Borrower being able to legally hold the Certificate, Term Borrower shall cause
3794865 Canada Ltd. to apply with the appropriate Tribunal for the transfer of
the Certificate to Term Borrower. No Restricted Person shall make any
Investment in 3794865 Canada Ltd. or enter into any transaction therewith, other
than the Wascana Operating Agreement, the transfer of the Certificate to Term
Borrower, or such other transaction as may be necessary in order to maintain and
preserve the Certificate and the rights and franchises thereunder in full force
and effect.
ARTICLE VIII - Events of Default and Remedies
------------------------------
Section 8.1. Events of Default. Each of the following events constitutes
-----------------
an Event of Default under this Agreement:
(a) Any Restricted Person fails to pay the principal component of any
Loan or any reimbursement obligation with respect to any Letter of Credit
when due and payable, whether at a date for the payment of a fixed
installment or as a contingent or other payment becomes due and payable or
as a result of acceleration or otherwise;
(b) Any Restricted Person fails to pay any Obligation (other than the
Obligations in subsection (a) above) when due and payable, whether at a
date for the payment of a fixed installment or as a contingent or other
payment becomes due and payable or as a result of acceleration or
otherwise, within three Business Days after the same becomes due;
(c) Any event defined as a "default" or "event of default" in any
Loan Document occurs, and the same is not remedied within the applicable
period of grace (if any) provided in such Loan Document;
97
(d) Any Restricted Person fails to duly observe, perform or comply
with any covenant, agreement or provision of Section 6.4 or Article VII;
(e) Any Restricted Person fails (other than as referred to in
subsections (a), (b), (c) or (d) above) to duly observe, perform or comply
with any covenant, agreement, condition or provision of any Loan Document
to which it is a party, and such failure remains unremedied for a period of
thirty (30) days after notice of such failure is given by Administrative
Agent to US Borrower;
(f) Any representation or warranty previously, presently or hereafter
made in writing by or on behalf of any Restricted Person in connection with
any Loan Document shall prove to have been false or incorrect in any
material respect on any date on or as of which made, or any Loan Document
at any time ceases to be valid, binding and enforceable as warranted in
Section 5.5 for any reason other than its release or subordination by
Administrative Agent;
(g) Any Restricted Person shall default in the payment when due of
any principal of or interest on any of its other Indebtedness in excess of
the Dollar Equivalent of $2,500,000 in the aggregate (other than
Indebtedness the validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves with respect
thereto are maintained on the books of such Restricted Person in accordance
with GAAP), or any event specified in any note, agreement, indenture or
other document evidencing or relating to any such Indebtedness shall occur
if the effect of such event is to cause, or (with the giving of any notice
or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, such Indebtedness to become due, or to be prepaid in full (whether
by redemption, purchase, offer to purchase or otherwise), prior to its
stated maturity;
(h) Either (i) any "accumulated funding deficiency" (as defined in
Section 412(a) of the Code) in excess of $500,000 exists with respect to
any ERISA Plan, whether or not waived by the Secretary of the Treasury or
his delegate, or (ii any Termination Event occurs with respect to any ERISA
Plan and the then current value of such ERISA Plan's benefit liabilities
exceeds the then current value of such ERISA Plan's assets available for
the payment of such benefit liabilities by more than $500,000 (or in the
case of a Termination Event involving the withdrawal of a substantial
employer, the withdrawing employer's proportionate share of such excess
exceeds such amount);
(i) General Partner or any Restricted Person:
(i) has entered against it of a judgment, decree or order for
relief by a Tribunal of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or
other similar Law of any jurisdiction now or hereafter in effect,
including the federal Bankruptcy Code, the Bankruptcy and Insolvency
Act (Canada) or the Companies' Creditors Arrangement Act (Canada), as
from time to time amended, or has any such
98
proceeding commenced against it, in each case, which remains
undismissed for a period of sixty days; or
(ii) commences a voluntary case under any applicable bankruptcy,
insolvency or similar Law now or hereafter in effect, including the
federal Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada) or
the Companies' Creditors Arrangement Act (Canada), as from time to
time amended; or applies for or consents to the entry of an order for
relief in an involuntary case under any such Law; or makes a general
assignment for the benefit of creditors; or is generally unable to pay
(or admits in writing its inability to so pay) its debts as such debts
become due; or takes corporate or other action to authorize any of the
foregoing; or
(iii) has entered against it the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of all or a substantial part of its
assets in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor
discharged within sixty days after the making thereof, or such
appointment or taking possession is at any time consented to,
requested by, or acquiesced to by it; or
(iv) has entered against it the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any part of the Collateral of a
value in excess of the Dollar Equivalent of $2,500,000 in a proceeding
brought against or initiated by it, and such appointment or taking
possession is neither made ineffective nor discharged within sixty
days after the making thereof, or such appointment or taking
possession is at any time consented to, requested by, or acquiesced to
by it; or
(v) has entered against it a final judgment for the payment of
money in excess of the Dollar Equivalent of $2,500,000 (in each case
not covered by insurance satisfactory to Administrative Agent in its
discretion), unless the same is stayed or discharged within thirty
days after the date of entry thereof or an appeal or appropriate
proceeding for review thereof is taken within such period and a stay
of execution pending such appeal is obtained; or
(vi) suffers a writ or warrant of attachment or any similar
process to be issued by any Tribunal against all or any substantial
part of its assets or any part of the Collateral of a value in excess
of the Dollar Equivalent of $2,500,000, and such writ or warrant of
attachment or any similar process is not stayed or released within
thirty days after the entry or levy thereof or after any stay is
vacated or set aside;
(j) General Partner shall default in the payment when due of any
principal of or interest on any of its Indebtedness in excess of $1,000,000
in the aggregate, or any
99
event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the effect
of such event is to cause, or (with the giving of any notice or the lapse
of time or both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity; or
(k) Any Change in Control occurs.
Upon the occurrence of an Event of Default described in subsection (i)(i),
(i)(ii) or (i)(iii) of this section with respect to US Borrower, Term Borrower,
Canadian Revolver Borrower, All American or Plains MLP, all of the Obligations
shall thereupon be immediately due and payable, without demand, presentment,
notice of demand or of dishonor and nonpayment, protest, notice of protest,
notice of intention to accelerate, declaration or notice of acceleration, or any
other notice or declaration of any kind, all of which are hereby expressly
waived by US Borrower, Term Borrower, Canadian Revolver Borrower and each
Restricted Person who at any time ratifies or approves this Agreement. Upon any
such acceleration, any obligation of any Lender to make any further Loans and
any obligation of US LC Issuer or Canadian LC Issuer to issue Letters of Credit
hereunder shall be permanently terminated. During the continuance of any other
Event of Default, Administrative Agent at any time and from time to time may
(and upon written instructions from Majority Lenders, Administrative Agent
shall), without notice to US Borrower, Term Borrower, Canadian Revolver Borrower
or any other Restricted Person, do either or both of the following: (1)
terminate any obligation of Lenders to make Loans hereunder and any obligation
of US LC Issuer or Canadian LC Issuer to issue Letters of Credit hereunder, and
(2) declare any or all of the Obligations immediately due and payable, and all
such Obligations shall thereupon be immediately due and payable, without demand,
presentment, notice of demand or of dishonor and nonpayment, protest, notice of
protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are
hereby expressly waived by US Borrower, Term Borrower, Canadian Revolver
Borrower and each Restricted Person who at any time ratifies or approves this
Agreement.
Section 8.2. Remedies. If any Default shall occur and be continuing,
--------
each Lender Party may protect and enforce its rights under the Loan Documents by
any appropriate proceedings, including proceedings for specific performance of
any covenant or agreement contained in any Loan Document, and each Lender Party
may enforce the payment of any Obligations due it or enforce any other legal or
equitable right which it may have. All rights, remedies and powers conferred
upon Lender Parties under the Loan Documents shall be deemed cumulative and not
exclusive of any other rights, remedies or powers available under the Loan
Documents or at Law or in equity.
ARTICLE IX - Agents
------
Section 9.1. Appointment and Authority.
-------------------------
100
(a) Each Lender Party hereby irrevocably authorizes Administrative Agent,
and Administrative Agent hereby undertakes, to receive payments of principal,
interest and other amounts due hereunder as specified herein and to take all
other actions and to exercise such powers under the Loan Documents as are
specifically delegated to Administrative Agent by the terms hereof or thereof,
together with all other powers reasonably incidental thereto. The relationship
of Administrative Agent to the other Lender Parties is only that of one
commercial lender acting as administrative agent for others, and nothing in the
Loan Documents shall be construed to constitute Administrative Agent a trustee
or other fiduciary for any Lender Party or any holder of any participation in a
Note nor to impose on Administrative Agent duties and obligations other than
those expressly provided for in the Loan Documents. With respect to any matters
not expressly provided for in the Loan Documents and any matters which the Loan
Documents place within the discretion of Administrative Agent, Administrative
Agent shall not be required to exercise any discretion or take any action, and
it may request instructions from Lenders with respect to any such matter, in
which case it shall be required to act or to refrain from acting (and shall be
fully protected and free from liability to all Lender Parties in so acting or
refraining from acting) upon the instructions of Majority Lenders (including
itself), provided, however, that Administrative Agent shall not be required to
take any action which exposes it to a risk of personal liability that it
considers unreasonable or which is contrary to the Loan Documents or to
applicable Law. Upon receipt by Administrative Agent from any Borrower of any
communication calling for action on the part of Lenders or upon notice from any
Borrower or any Lender to Administrative Agent of any Default or Event of
Default, Administrative Agent shall promptly notify each other Lender thereof.
Each Lender hereby expressly authorizes Administrative Agent, on behalf of such
Lender, to execute and deliver the Intercreditor Agreement in the form attached
hereto as Exhibit H.
(b) Each Lender Party hereby irrevocably authorizes Canadian
Administration Agent, and Canadian Administration Agent hereby undertakes, to
receive payments of principal, interest and other amounts due hereunder as
specified herein and to take all other actions and to exercise such powers under
the Loan Documents as are specifically delegated to Canadian Administration
Agent by the terms hereof or thereof, together with all other powers reasonably
incidental thereto. The relationship of Canadian Administration Agent to the
other Lender Parties is only that of one commercial lender acting as
administrative agent for others, and nothing in the Loan Documents shall be
construed to constitute Canadian Administration Agent a trustee or other
fiduciary for any Lender Party or any holder of any participation in a Canadian
Revolver Note nor to impose on Canadian Administration Agent duties and
obligations other than those expressly provided for in the Loan Documents. With
respect to any matters not expressly provided for in the Loan Documents and any
matters which the Loan Documents place within the discretion of Canadian
Administration Agent, Canadian Administration Agent shall not be required to
exercise any discretion or take any action, and it may request instructions from
Lenders with respect to any such matter, in which case it shall be required to
act or to refrain from acting (and shall be fully protected and free from
liability to all Lender Parties in so acting or refraining from acting) upon the
instructions of Majority Lenders (including itself), provided, however, that
Canadian Administration Agent shall not be required to take any action which
exposes it to a risk of personal liability that it considers unreasonable or
which is contrary to the Loan Documents or to applicable Law. Upon receipt by
Canadian Administration Agent from
101
any Borrower of any communication calling for action on the part of Lenders or
upon notice from any Borrower or any Lender to Canadian Administration Agent of
any Default or Event of Default, Canadian Administration Agent shall promptly
notify each other Lender thereof.
Section 9.2. Exculpation, Administrative Agent's Reliance, Etc. Neither
-------------------------------------------------
any Agent nor any of its directors, officers, agents, attorneys, or employees
shall be liable for any action taken or omitted to be taken by any of them under
or in connection with the Loan Documents, including their negligence of any
kind, except that each shall be liable for its own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, each Agent (a)
may treat the payee of any Note as the holder thereof until such Agent receives
written notice of the assignment or transfer thereof in accordance with this
Agreement, signed by such payee and in form satisfactory to such Agent; (b) may
consult with legal counsel (including counsel for any Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any other Lender Party and shall not be responsible to any
other Lender Party for any statements, warranties or representations made in or
in connection with the Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of the Loan Documents on the part of any Restricted Person or to
inspect the property (including the books and records) of any Restricted Person;
(e) shall not be responsible to any other Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Loan Document or any instrument or document furnished in connection therewith;
(f) may rely upon the representations and warranties of each Restricted Person
or Lender Party in exercising its powers hereunder; and (g) shall incur no
liability under or in respect of the Loan Documents by acting upon any notice,
consent, certificate or other instrument or writing (including any facsimile,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper Person or Persons.
Section 9.3. Credit Decisions. Each Lender Party acknowledges that it
----------------
has, independently and without reliance upon any other Lender Party, made its
own analysis of US Borrower, Term Borrower, and Canadian Revolver Borrower and
the transactions contemplated hereby and its own independent decision to enter
into this Agreement and the other Loan Documents. Each Lender Party also
acknowledges that it will, independently and without reliance upon any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents.
Section 9.4. Indemnification. Each Lender agrees to indemnify each Agent
---------------
(to the extent not reimbursed by US Borrower, Term Borrower, or Canadian
Revolver Borrower within ten (10) days after demand) from and against such
Lender's Aggregate Percentage Share of any and all liabilities, obligations,
claims, losses, damages, penalties, fines, actions, judgments, suits,
settlements, costs, expenses or disbursements (including reasonable fees of
attorneys, accountants, experts and advisors) of any kind or nature whatsoever
(in this section collectively called "liabilities and costs") which to any
extent (in
102
whole or in part) may be imposed on, incurred by, or asserted against such Agent
growing out of, resulting from or in any other way associated with any of the
Collateral, the Loan Documents and the transactions and events (including the
enforcement thereof) at any time associated therewith or contemplated therein
(whether arising in contract or in tort or otherwise and including any violation
or noncompliance with any Environmental Laws by any Person or any liabilities or
whole or in part) may be imposed on, incurred by, or asserted against such Agent
growing out of, resulting from or in any other way associated with any of the
Collateral, the Loan Documents and the transactions and events (including the
enforcement thereof) at any time associated therewith or contemplated therein
(whether arising in contract or in tort or otherwise and including any violation
or noncompliance with any Environmental Laws by any Person or any liabilities or
duties of any Person with respect to Hazardous Materials found in or released
into the environment).
The foregoing indemnification shall apply whether or not such liabilities and
costs are in any way or to any extent owed, in whole or in part, under any claim
or theory of strict liability or caused, in whole or in part, by any negligent
act or omission of any kind by any Agent, provided only that no Lender shall be
obligated under this section to indemnify any Agent for that portion, if any, of
any liabilities and costs which is proximately caused by such Agent's own
individual gross negligence or willful misconduct, as determined in a final
judgment. Cumulative of the foregoing, each Lender agrees to reimburse each
Agent promptly upon demand for such Lender's Aggregate Percentage Share of any
costs and expenses to be paid to such Agent by US Borrower, Term Borrower, and
Canadian Revolver Borrower under Section 10.4(a) to the extent that such Agent
is not timely reimbursed for such expenses by such Persons as provided in such
section. As used in this section the term " Agent" shall refer not only to the
Persons designated as such in Section 1.1 but also to each director, officer,
agent, attorney, employee, representative and Affiliate of such Person.
Section 9.5. Rights as Lender. In its capacity as a Lender, each Agent
----------------
shall have the same rights and obligations as any Lender and may exercise such
rights as though it were not an Agent. Each Agent may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with any Restricted Person or their Affiliates, all as if it
were not Administrative Agent hereunder and without any duty to account therefor
to any other Lender.
Section 9.6. Sharing of Set-Offs and Other Payments. Each Lender Party
--------------------------------------
agrees that if it shall, whether through the exercise of rights under Security
Documents or rights of banker's lien, set off, or counterclaim against US
Borrower, Term Borrower, or Canadian Revolver Borrower or otherwise, obtain
payment of a portion of the aggregate Obligations owed to it which, taking into
account all distributions made by either Agent under Section 3.1, causes such
Lender Party to have received more than it would have received had such payment
been received by either Agent and distributed pursuant to Section 3.1, then (a)
it shall be deemed to have simultaneously purchased and shall be obligated to
purchase interests in the Obligations as necessary to cause all Lender Parties
to share all payments as provided for in Section 3.1, and (b) such other
adjustments shall be made from time to time as shall be equitable to ensure that
such Agent and all Lender Parties share all payments of Obligations as provided
in Section 3.1; provided, however, that nothing herein contained shall in any
way affect the right of any Lender Party to obtain payment (whether by exercise
of rights of banker's lien, set-off or counterclaim or otherwise) of
indebtedness other than the Obligations. Each of US Borrower, Term Borrower,
103
and Canadian Revolver Borrower expressly consents to the foregoing arrangements
and agrees that any holder of any such interest or other participation in the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
to the fullest extent permitted by Law and, subject to the provisions of Section
6.16, exercise any and all rights of banker's lien, set-off, or counterclaim as
fully as if such holder were a holder of the Obligations in the amount of such
interest or other participation. If all or any part of any funds transferred
pursuant to this section is thereafter recovered from the seller under this
section which received the same, the purchase provided for in this section shall
be deemed to have been rescinded to the extent of such recovery, together with
interest, if any, if interest is required pursuant to the order of a Tribunal to
be paid on account of the possession of such funds prior to such recovery.
Section 9.7. Investments. Whenever either Agent in good faith determines
-----------
that it is uncertain about how to distribute to Lender Parties any funds which
it has received, or whenever either Agent in good faith determines that there is
any dispute among Lender Parties about how such funds should be distributed,
such Agent may choose to defer distribution of the funds which are the subject
of such uncertainty or dispute. If either Agent in good faith believes that the
uncertainty or dispute will not be promptly resolved, or if either Agent is
otherwise required to invest funds pending distribution to Lender Parties, such
Agent shall invest such funds pending distribution; all interest on any such
Investment shall be distributed upon the distribution of such Investment and in
the same proportion and to the same Persons as such Investment. All moneys
received by either Agent for distribution to Lender Parties (other than to the
Person who is Administrative Agent in its separate capacity as a Lender Party or
the Person who is Canadian Administration Agent in its separate capacity as a
Lender Party) shall be held by such Agent pending such distribution solely as
such Agent for such Lender Parties, and such Agent shall have no equitable title
to any portion thereof.
Section 9.8. Benefit of Article IX. The provisions of this Article are
---------------------
intended solely for the benefit of Lender Parties, and no Restricted Person
shall be entitled to rely on any such provision or assert any such provision in
a claim or defense against any Lender (other than in relation to the reference
to Section 6.16 contained in Section 9.6 or the right to reasonably approve a
successor Agent under Section 9.9). Lender Parties may waive or amend such
provisions as they desire without any notice to or consent of US Borrower, Term
Borrower, or Canadian Revolver Borrower or any other Restricted Person.
Section 9.9. Resignation.
-----------
(a) Administrative Agent may resign at any time by giving written notice
thereof to Lenders and US Borrower. Each such notice shall set forth the date
of such resignation. Upon any such resignation Majority Lenders shall have the
right to appoint a successor Administrative Agent, subject to the approval of US
Borrower, unless a Default has occurred and is continuing, which approval will
not be unreasonably withheld. A successor must be appointed for any retiring
Administrative Agent, and such Administrative Agent's resignation shall become
effective when such successor accepts such appointment. If, within thirty days
after the date of the retiring Administrative Agent's resignation, no successor
Administrative Agent has been appointed and has accepted such appointment, then
the retiring Administrative Agent may
104
appoint a successor Administrative Agent, which shall be a commercial bank
organized or licensed to conduct a banking or trust business under the Laws of
the United States of America or of any state thereof. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under the Loan
Documents.
(b) Canadian Administration Agent may resign at any time by giving written
notice thereof to Lenders and Canadian Revolver Borrower. Each such notice
shall set forth the date of such resignation. Upon any such resignation
Majority Lenders shall have the right to appoint a successor Canadian
Administration Agent, subject to the approval of Canadian Revolver Borrower,
unless a Default has occurred and is continuing, which approval will not be
unreasonably withheld. A successor must be appointed for any retiring Canadian
Administration Agent, and such Canadian Administration Agent's resignation shall
become effective when such successor accepts such appointment. If, within sixty
days after the date of the retiring Canadian Administration Agent's resignation,
no successor Canadian Administration Agent has been appointed and has accepted
such appointment, then the retiring Canadian Administration Agent may appoint a
successor Canadian Administration Agent. Each Canadian Administration Agent
shall be a commercial bank organized or licensed to conduct a banking or trust
business under the Laws of the Dominion of Canada or of any province thereof.
Upon the acceptance of any appointment as Canadian Administration Agent
hereunder by a successor Canadian Administration Agent, the retiring Canadian
Administration Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. After any retiring Canadian
Administration Agent's resignation hereunder the provisions of this Article IX
shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Canadian Administration Agent under the Loan Documents.
Section 9.10. Other Agents. Neither the Syndication Agent nor the
------------
Documentation Agent ("Co-Agents"), in such capacities, shall have any duties or
---------
responsibilities or incur any liabilities in such agency capacities (as opposed
to its capacity as a Lender) under or in connection with this Agreement or under
any of the other Loan Documents. The relationship between US Borrower, Term
Borrower, Canadian Revolver Borrower on the one hand, and the Co-Agents and the
Agents, on the other hand, shall be solely that of borrower and lender. None of
the Co-Agents shall have any fiduciary responsibilities to any of US Borrower,
Term Borrower, Canadian Revolver Borrower or any of its Affiliates. None of
the Co-Agents undertakes any responsibility to any of US Borrower, Term
Borrower, and Canadian Revolver Borrower or any of its respective Affiliates to
review or inform any such Person of any matter in connection with any phase of
such Person's or such Affiliate's business or operations.
105
ARTICLE X - Miscellaneous
-------------
Section 10.1. Waivers and Amendments; Acknowledgments.
---------------------------------------
(a) Waivers and Amendments. No failure or delay (whether by
----------------------
course of conduct or otherwise) by any Lender in exercising any right,
power or remedy which such Lender Party may have under any of the Loan
Documents shall operate as a waiver thereof or of any other right, power or
remedy, nor shall any single or partial exercise by any Lender Party of any
such right, power or remedy preclude any other or further exercise thereof
or of any other right, power or remedy. No waiver of any provision of any
Loan Document and no consent to any departure therefrom shall ever be
effective unless it is in writing and signed as provided below in this
section, and then such waiver or consent shall be effective only in the
specific instances and for the purposes for which given and to the extent
specified in such writing. No notice to or demand on any Restricted Person
shall in any case of itself entitle any Restricted Person to any other or
further notice or demand in similar or other circumstances. This Agreement
and the other Loan Documents set forth the entire understanding between the
parties hereto with respect to the transactions contemplated herein and
therein and supersede all prior discussions and understandings with respect
to the subject matter hereof and thereof, and no waiver, consent, release,
modification or amendment of or supplement to this Agreement or the other
Loan Documents shall be valid or effective against any party hereto unless
the same is in writing and signed by (i) if such party is a Borrower, by
such Borrower, (ii if such party is Administrative Agent, Canadian
Administration Agent, US LC Issuer or Canadian LC Issuer, by such party,
and (ii if such party is a Lender, by such Lender or by Administrative
Agent on behalf of Lenders with the written consent of Majority Lenders
(which consent has already been given as to the termination of the Loan
Documents as provided in Section 10.11). Notwithstanding the foregoing or
anything to the contrary herein, Administrative Agent shall not, without
the prior consent of each individual Lender, execute and deliver on behalf
of such Lender any waiver or amendment which would: (1) waive any of the
conditions specified in Article IV (provided that Administrative Agent may
in its discretion withdraw any request it has made under Section 4.2(f)),
(2) increase the maximum amount which such Lender is committed hereunder to
lend, (3) reduce any fees payable to such Lender hereunder, or the
principal of, or interest on, such Lender's Note, (4) change any date fixed
for any payment of any such fees, principal or interest, (5) amend the
definition herein of "Majority Lenders" or otherwise change the Aggregate
Percentage Shares which are required for Administrative Agent, Canadian
Administration Agent, Lenders or any of them to take any particular action
under the Loan Documents, (6) release any Borrower from its obligation to
pay such Lender's Note or any Guarantor from its guaranty of such payment,
or (7) release any Collateral, except such releases relating to sales of
property as permitted under Section 7.5.
(b) Acknowledgments and Admissions. Each Borrower hereby
------------------------------
represents, warrants, acknowledges and admits that (i) it has been advised
by counsel in the negotiation, execution and delivery of the Loan Documents
to which it is a party, (ii) it
106
has made an independent decision to enter into this Agreement and the other
Loan Documents to which it is a party, without reliance on any
representation, warranty, covenant or undertaking by Administrative Agent
or any other Lender Party, whether written, oral or implicit, other than as
expressly set out in this Agreement or in another Loan Document delivered
on or after the date hereof, (ii there are no representations, warranties,
covenants, undertakings or agreements by any Lender Party as to the Loan
Documents except as expressly set out in this Agreement or in another Loan
Document delivered on or after the date hereof, (iv no Lender Party has any
fiduciary obligation toward such Borrower with respect to any Loan Document
or the transactions contemplated thereby, (v) the relationship pursuant to
the Loan Documents between such Borrower and the other Restricted Persons,
on one hand, and each Lender Party, on the other hand, is and shall be
solely that of debtor and creditor, respectively, (vi no partnership or
joint venture exists with respect to the Loan Documents between any
Restricted Person and any Lender Party, (vi Administrative Agent is not
such Borrower's Administrative Agent, but Administrative Agent for Lenders,
(vi should an Event of Default or Default occur or exist, each Lender Party
will determine in its sole discretion and for its own reasons what remedies
and actions it will or will not exercise or take at that time, (ix without
limiting any of the foregoing, such Borrower is not relying upon any
representation or covenant by any Lender Party, or any representative
thereof, and no such representation or covenant has been made, that any
Lender Party will, at the time of an Event of Default or Default, or at any
other time, waive, negotiate, discuss, or take or refrain from taking any
action permitted under the Loan Documents with respect to any such Event of
Default or Default or any other provision of the Loan Documents, and (x)
all Lender Parties have relied upon the truthfulness of the acknowledgments
in this section in deciding to execute and deliver this Agreement and to
become obligated hereunder.
(c) Representation by Lenders. Each Lender hereby represents that it
-------------------------
will acquire its Notes for its own account in the ordinary course of its
commercial lending or investing business; however, the disposition of such
Lender's property shall at all times be and remain within its control and,
in particular and without limitation, such Lender may sell or otherwise
transfer its Note, any participation interest or other interest in its
Note, or any of its other rights and obligations under the Loan Documents
subject to compliance with Sections 10.5(b) through (f), inclusive, and
applicable Law.
(d) Joint Acknowledgment. This written Agreement and the other Loan
--------------------
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties.
There are no unwritten oral agreements between the parties.
(e) Annual Rates of Interest. For the purposes of the Interest Act
------------------------
(Canada), whenever interest payable pursuant to this Agreement is
calculated on the basis of a period other than a calendar year (in this
Section 10.1(e), the "Interest Period"), each rate
107
of interest determined pursuant to such calculation expressed as an annual
rate is equivalent to such rate as so determined multiplied by the actual
number of days in the calendar year in which the same is to be ascertained
and divided by the number of days in the Interest Period.
Section 10.2. Survival of Agreements; Cumulative Nature. All of
-----------------------------------------
Restricted Persons' various representations, warranties, covenants and
agreements in the Loan Documents shall survive the execution and delivery of
this Agreement and the other Loan Documents and the performance hereof and
thereof, including the making or granting of the Loans and the delivery of the
Notes and the other Loan Documents, and shall further survive until all of the
Obligations are paid in full to each Lender Party and all of Lender Parties'
obligations to Borrowers are terminated. All statements and agreements
contained in any certificate or other instrument delivered by any Restricted
Person to any Lender Party under any Loan Document shall be deemed
representations and warranties by Borrowers or agreements and covenants of
Borrowers under this Agreement. The representations, warranties, indemnities,
and covenants made by Restricted Persons in the Loan Documents, and the rights,
powers, and privileges granted to Lender Parties in the Loan Documents, are
cumulative, and, except for expressly specified waivers and consents, no Loan
Document shall be construed in the context of another to diminish, nullify, or
otherwise reduce the benefit to any Lender Party of any such representation,
warranty, indemnity, covenant, right, power or privilege. In particular and
without limitation, no exception set out in this Agreement to any
representation, warranty, indemnity, or covenant herein contained shall apply to
any similar representation, warranty, indemnity, or covenant contained in any
other Loan Document, and each such similar representation, warranty, indemnity,
or covenant shall be subject only to those exceptions which are expressly made
applicable to it by the terms of the various Loan Documents.
Section 10.3. Notices. All notices, requests, consents, demands and
-------
other communications required or permitted under any Loan Document shall be in
writing, unless otherwise specifically provided in such Loan Document (provided
that Administrative Agent may give telephonic notices to the other Lender
Parties), and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by facsimile or other electronic transmission, by delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, to Borrowers and Restricted Persons at the address of
Borrowers specified on the signature pages hereto and to each Lender Party at
its address specified on the signature pages hereto (unless changed by similar
notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address provided
herein, (b) in the case of facsimile or other electronic transmission, upon
receipt, or (c) in the case of registered or certified United States mail, three
days after deposit in the mail; provided, however, that no Borrowing Notice or
Continuation/Conversion Notice shall become effective until actually received by
Administrative Agent.
108
Section 10.4. Payment of Expenses; Indemnity.
------------------------------
(a) Payment of Expenses. Whether or not the transactions
-------------------
contemplated by this Agreement are consummated, each Borrower will promptly
(and in any event, within 30 days after any invoice or other statement or
notice) pay: (i) all transfer, stamp, mortgage, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement or any of the other Loan Documents
or any other document referred to herein or therein, (ii all reasonable
costs and expenses incurred by or on behalf of Administrative Agent
(including attorneys' fees, consultants' fees and engineering fees, travel
costs and miscellaneous expenses) in connection with (1) the negotiation,
preparation, execution and delivery of the Loan Documents, and any and all
consents, waivers or other documents or instruments relating thereto, (2)
the filing, recording, refiling and re-recording of any Loan Documents and
any other documents or instruments or further assurances required to be
filed or recorded or refiled or re-recorded by the terms of any Loan
Document, (3) the borrowings hereunder and other action reasonably required
in the course of administration hereof, (4) monitoring or confirming (or
preparation or negotiation of any document related to) such Borrower's
compliance with any covenants or conditions contained in this Agreement or
in any Loan Document, and (ii all reasonable costs and expenses incurred by
or on behalf of any Lender Party (including attorneys' fees, consultants'
fees and accounting fees) in connection with the defense or enforcement of
any of the Loan Documents (including this section) or the defense of any
Lender Party's exercise of its rights thereunder. In addition to the
foregoing, until all Obligations have been paid in full, each Borrower will
also pay or reimburse Administrative Agent for all reasonable out-of-pocket
costs and expenses of Administrative Agent or its agents or employees in
connection with the continuing administration of the Loans and the related
due diligence of Administrative Agent, including travel and miscellaneous
expenses and fees and expenses of Administrative Agent's outside counsel,
reserve engineers and consultants engaged in connection with the Loan
Documents.
(b) Indemnity. Each Borrower agrees to indemnify each Lender
---------
Party, upon demand, from and against any and all liabilities, obligations,
claims, losses, damages, penalties, fines, actions, judgments, suits,
settlements, costs, expenses or disbursements (including reasonable fees of
attorneys, accountants, experts and advisors) of any kind or nature
whatsoever (in this section collectively called "liabilities and costs")
which to any extent (in whole or in part) may be imposed on, incurred by,
or asserted against such Lender Party growing out of, resulting from or in
any other way associated with any of the Collateral, the Loan Documents and
the transactions and events (including the enforcement or defense thereof)
at any time associated therewith or contemplated therein (whether arising
in contract or in tort or otherwise and including any violation or
noncompliance with any Environmental Laws by any Lender Party or any other
Person or any liabilities or duties of any Lender Party or any other Person
with respect to Hazardous Materials found in or released into the
environment).
109
The foregoing indemnification shall apply whether or not such liabilities and
costs are in any way or to any extent owed, in whole or in part, under any claim
or theory of strict liability or caused, in whole or in part, by any negligent
act or omission of any kind by any Lender Party, provided only that no Lender
Party shall be entitled under this section to receive indemnification for that
portion, if any, of any liabilities and costs which is proximately caused by its
own individual gross negligence or willful misconduct, as determined in a final
judgment. If any Person (including any Borrower or any of its Affiliates) ever
alleges such gross negligence or willful misconduct by any Lender Party, the
indemnification provided for in this section shall nonetheless be paid upon
demand, subject to later adjustment or reimbursement, until such time as a court
of competent jurisdiction enters a final judgment as to the extent and effect of
the alleged gross negligence or willful misconduct. As used in this section the
term "Lender Party" shall refer not only to each Person designated as such in
Section 1.1 but also to each director, officer, trustee, agent, attorney,
employee, representative and Affiliate of such Persons.
Section 10.5. Joint and Several Liability; Parties in Interest;
-------------------------------------------------
Assignments; Replacement Notes.
------------------------------
(a) All Obligations which are incurred by two or more Restricted Persons
shall be their joint and several obligations and liabilities. All grants,
covenants and agreements contained in the Loan Documents shall bind and inure to
the benefit of the parties thereto and their respective successors and permitted
assigns; provided, however, that no Restricted Person may assign or transfer any
of its rights or delegate any of its duties or obligations under any Loan
Document without the prior consent of all Lenders. Neither any Borrower nor any
Affiliates of any Borrower shall directly or indirectly purchase or otherwise
retire any Obligations owed to any Lender nor will any Lender accept any offer
to do so, unless each Lender shall have received substantially the same offer
with respect to the same Percentage Share of the Obligations owed to it. If any
Borrower or any Affiliate of any Borrower at any time purchases some but less
than all of the Obligations owed to all Lender Parties, such purchaser shall not
be entitled to any rights of any Lender under the Loan Documents unless and
until such Borrower or its Affiliates have purchased all of the Obligations.
(b) No Lender shall sell any participation interest in its commitment
hereunder or any of its rights under its Loans or under the Loan Documents to
any Person unless the agreement between such Lender and such participant at all
times provides: (i) that such participation exists only as a result of the
agreement between such participant and such Lender and that such transfer does
not give such participant any right to vote as a Lender or any other direct
claims or rights against any Person other than such Lender, (ii) that such
participant is not entitled to payment from any Restricted Person under Sections
3.2 through 3.6 of amounts in excess of those payable to such Lender under such
sections (determined without regard to the sale of such participation), and
(iii) unless such participant is an Affiliate of such Lender, that such
participant shall not be entitled to require such Lender to take any action
under any Loan Document or to obtain the consent of such participant prior to
taking any action under any Loan Document, except for actions which would
require the consent of all Lenders under subsection (a) of Section 10.1. No
Lender selling such a participation shall, as between the other parties hereto
and such Lender, be
110
relieved of any of its obligations hereunder as a result of the sale of such
participation. Each Lender which sells any such participation to any Person
(other than an Affiliate of such Lender) shall give prompt notice thereof to
Administrative Agent and the relevant Borrower; provided, however, that no
liability shall arise if any such Lender fails to give such notice to such
Borrower.
(c) Except for sales of participations under the immediately preceding
subsection, no Lender shall make any assignment or transfer of any kind of its
commitments or any of its rights under its Loans or under the Loan Documents,
except for assignments to an Eligible Transferee or, subject to the provisions
of Subsection (g) below, to an Affiliate, and then only if such assignment is
made in accordance with the following requirements:
(i) In the case of an assignment by a US Lender or Canadian
Revolver Lender of less than all of its Loans, LC Obligations, and
Commitments, each such assignment shall apply to a consistent percentage of
all Loans and LC Obligations owing to the assignor Lender hereunder and to
the same percentage of the unused portion of the assignor Lender's
Commitments, so that after such assignment is made both the assignee Lender
and the assignor Lender shall have a fixed (and not a varying) Percentage
Share in its Loans and LC Obligations and be committed to make that
Percentage Share of all future Loans and make that Percentage Share of all
future participations in LC Obligations, and the Percentage Share of such
US Commitment or Canadian Revolver Commitment of each of the assignor and
assignee shall equal or exceed $5,000,000. In the case of an assignment by
a Term Lender of less than all of its Term 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% (provided that such
minimum Term 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 or the same fund
manager).
(ii) The parties to each such assignment shall execute and deliver
to Administrative Agent (and, as to assignments of Canadian Obligations,
Canadian Administration Agent), for its acceptance and recording in the
"Register" (as defined below in this section), an Assignment and Acceptance
in the form of Exhibit H, appropriately completed, together with the Note
subject to such assignment and a processing fee payable by such assignor
Lender (and not at Borrower's expense) to Administrative Agent of $3,500;
provided, no such processing fee shall be payable in connection with any
assignment of any Term Loan (or portion thereof) by a Lender to any fund
that invests in loans and is managed by such Lender or any affiliate of
such Lender. Upon such execution, delivery, and payment and upon the
satisfaction of the conditions set out in such Assignment and Acceptance,
then (i) the relevant Borrower shall issue new Notes to such assignor and
assignee upon return of the old Notes to the relevant Borrower, and (ii) as
of the "Settlement Date" specified in such Assignment and Acceptance the
assignee thereunder shall be a party hereto and a Lender hereunder and
Administrative Agent shall thereupon deliver to the relevant Borrower and
each Lender a revised Schedule 1 hereto showing the revised Percentage
Shares and total Percentage
111
Shares of such assignor Lender and such assignee Lender and the revised
Percentage Shares and total Percentage Shares of all other Lenders.
(iii) Each assignee Lender other than an assignee Canadian Revolver
Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, shall (to
the extent it has not already done so) provide Administrative Agent and
Borrower with the "Prescribed Forms" referred to in Section 3.7(d).
(iv) Each assignee Canadian Revolver Lender shall be a financial
institution that is not a non-resident of Canada for the purposes of the
Income Tax Act (Canada).
(d) Any Lender may at any time pledge all or any portion of its Loan and
Note (and related rights under the Loan Documents including any portion of its
Note) to any of the twelve (12) Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
enforcement thereof shall release any such Lender from its obligations under any
of the Loan Documents; provided that all related costs, fees and expenses in
connection with any such pledge shall be for the sole account of such Lender.
(e) By executing and delivering an Assignment and Acceptance, each assignee
Lender thereunder will be confirming to and agreeing with the relevant Borrower,
Administrative Agent and each other Lender Party that such assignee understands
and agrees to the terms hereof, including Article IX hereof.
(f) Administrative Agent (and with respect to Canadian Obligations,
Canadian Administration Agent) shall maintain a copy of each Assignment and
Acceptance and a register for the recordation of the names and addresses of
Lenders and the Percentage Shares of, and principal amount of the Loans owing
to, each Lender from time to time (in this section called the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and Borrowers and each Lender Party may treat each Person whose name is recorded
in the Register as a Lender Party hereunder for all purposes. The Register
shall be available for inspection by Borrowers or any Lender Party at any
reasonable time and from time to time upon reasonable prior notice.
(g) Any Lender may assign or transfer its commitment or its rights under
its Loans or under the Loan Documents to (i) any Affiliate that is wholly-owned
direct or indirect subsidiary of such Lender or of any Person that wholly owns,
directly or indirectly, such Lender, or (ii) if such Lender is a fund that makes
or invests in bank loans, any other fund that makes or invests in bank loans and
is advised or managed by (A) the same investment advisor as any Lender or (B)
any Affiliate of such investment advisor that is a wholly-owned direct or
indirect subsidiary of any Person that wholly owns, directly or indirectly, such
investment advisor, subject to the following additional conditions:
(x) any right of such Lender assignor and such assignee to vote as
a Lender, or any other direct claims or rights against any other Persons,
shall be uniformly exercised
112
or pursued in the manner that such Lender assignor would have so exercised
such vote, claim or right if it had not made such assignment or transfer;
(y) such assignee shall not be entitled to payment from any
Restricted Person under Sections 3.2 through 3.7 of amounts in excess of
those payable to such Lender assignor under such sections (determined
without regard to such assignment or transfer); and
(z) if such Lender assignor is a Lender that assigns or transfers
to such assignee any of such Lender Commitment, assignee may become
primarily liable for such Commitment, but such assignment or transfer shall
not relieve or release such Lender from such Commitment.
(h) Upon receipt of an affidavit reasonably satisfactory to Borrower of
an officer of any Lender as to the loss, theft, destruction or mutilation of its
Note or any Security Document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of such Note
or such Security Document, Borrower will execute and deliver, in lieu thereof, a
replacement Note in the same principal amount thereof and otherwise of like
tenor (or each Restricted Person a party to any such Security Document will
execute and deliver a replacement Security Document of like tenor).
Section 10.6. Confidentiality. Each Lender Party agrees (on behalf of
---------------
itself and each of its Affiliates, and each of its and their directors,
officers, agents, attorneys, employees, and representatives) that it (and each
of them) will take all reasonable steps to keep confidential any non-public
information supplied to it by or at the direction of any Restricted Person so
identified when delivered, provided, however, that this restriction shall not
apply to (a) information which has at the time in question entered the public
domain, (b) information which is required to be disclosed by Law (whether valid
or invalid) of any Tribunal, (c) any disclosure to any Lender Party's
Affiliates, auditors, attorneys, or agents, (d) any disclosure to any other
Lender Party or to any purchaser or prospective purchaser of participations or
other interests in any Loan or Loan Document (provided each such Person first
agrees to hold such information in confidence on the terms provided in this
section), or (e) any disclosure in the course of enforcing its rights and
remedies during the existence of an Event of Default.
Section 10.7. Governing Law; Submission to Process. Except to the extent
------------------------------------
that the Law of another jurisdiction is expressly elected in a Loan Document,
the Loan Documents shall be deemed contracts and instruments made under the Laws
of the State of New York and shall be construed and enforced in accordance with
and governed by the Laws of the State of New York and the Laws of the United
States of America, without regard to principles of conflicts of law. Each
Borrower hereby agrees that any legal action or proceeding against such Borrower
with respect to this Agreement, the Notes or any of the Loan Documents may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York as Lender Parties may elect, and,
by execution and delivery hereof, each Borrower accepts
113
and consents for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Each
Borrower agrees that Sections 5-1401 and 5-1402 of the General Obligations Law
of the State of New York shall apply to the Loan Documents and waives any right
to stay or to dismiss any action or proceeding brought before said courts on the
basis of forum non conveniens. In furtherance of the foregoing, each Borrower
hereby irrevocably designates and appoints Corporation Service Company, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as agent of such Borrower to receive service of
all process brought against such Borrower with respect to any such proceeding in
any such court in New York, such service being hereby acknowledged by such
Borrower to be effective and binding service in every respect. Copies of any
such process so served shall also, if permitted by Law, be sent by registered
mail to the relevant Borrower at its address set forth below, but the failure of
such Borrower to receive such copies shall not affect in any way the service of
such process as aforesaid. Each Borrower shall furnish to Lender Parties a
consent of Corporation Service Company agreeing to act hereunder prior to the
effective date of this agreement. Nothing herein shall affect the right of
Lender Parties to serve process in any other manner permitted by Law or shall
limit the right of Lender Parties to bring proceedings against any Borrower in
the courts of any other jurisdiction. If for any reason Corporation Service
Company shall resign or otherwise cease to act as any Borrower's agent, each
Borrower hereby irrevocably agrees to (a) immediately designate and appoint a
new agent acceptable to Administrative Agent to serve in such capacity and, in
such event, such new agent shall be deemed to be substituted for Corporation
Service Company for all purposes hereof and (b) promptly deliver to Agent the
written consent (in form and substance satisfactory to Administrative Agent) of
such new agent agreeing to serve in such capacity.
Section 10.8. Waiver of Judgment Interest Act (Alberta). To the extent
-----------------------------------------
permitted by Law, the provisions of the Judgment Interest Act (Alberta) shall
not apply to the Canadian Revolver Notes, the Term Notes, and the other Loan
Documents and are hereby expressly waived by Canadian Revolver Borrower and Term
Borrower.
Section 10.9. Deemed Reinvestment Not Applicable. For the purposes of
----------------------------------
the Interest Act (Canada), the principle of deemed reinvestment of interest
shall not apply to any interest calculation under the Loan Documents, and the
rates of interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.
Section 10.10. Limitation on Interest. Lender Parties, Restricted
----------------------
Persons and any other parties to the Loan Documents intend to contract in strict
compliance with applicable usury Law from time to time in effect. In
furtherance thereof such Persons stipulate and agree that none of the terms and
provisions contained in the Loan Documents shall ever be construed to create a
contract to pay, for the use, forbearance or detention of money, interest in
excess of the maximum amount of interest permitted to be contracted for,
charged, or received by applicable
114
Law from time to time in effect. Neither any Restricted Person nor any present
or future guarantors, endorsers, or other Persons hereafter becoming liable for
payment of any Obligation shall ever be liable for unearned interest thereon or
shall ever be required to pay interest thereon in excess of the maximum amount
that may be lawfully contracted for, charged, or received under applicable Law
from time to time in effect, and the provisions of this section shall control
over all other provisions of the Loan Documents which may be in conflict or
apparent conflict herewith. Lender Parties expressly disavow any intention to
contract for, charge, or receive excessive unearned interest or finance charges
in the event the maturity of any Obligation is accelerated. If (a) the maturity
of any Obligation is accelerated for any reason, (b) any Obligation is prepaid
and as a result any amounts held to constitute interest are determined to be in
excess of the legal maximum, or (c) any Lender or any other holder of any or all
of the Obligations shall otherwise collect moneys which are determined to
constitute interest which would otherwise increase the interest on any or all of
the Obligations to an amount in excess of that permitted to be contracted for,
charged or received by applicable Law then in effect, then all sums determined
to constitute interest in excess of such legal limit shall, without penalty, be
promptly applied to reduce the then outstanding principal of the related
Obligations or, at such Lender's or holder's option, promptly returned to
Borrower or other payor thereof upon such determination. In determining whether
or not the interest paid or payable, under any specific circumstance, exceeds
the maximum amount permitted under applicable Law, Lender Parties and Restricted
Persons (and any other payors thereof) shall to the greatest extent permitted
under applicable Law, (i) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (ii exclude voluntary prepayments and
the effects thereof, and (ii amortize, prorate, allocate, and spread the total
amount of interest throughout the entire contemplated term of the instruments
evidencing the Obligations in accordance with the amounts outstanding from time
to time thereunder and the maximum legal rate of interest from time to time in
effect under applicable Law in order to lawfully charge the maximum amount of
interest permitted under applicable Law. In the event applicable Law provides
for an interest ceiling under Chapter 303 of the Texas Finance Code (the "Texas
Finance Code") as amended, to the extent that the Texas Finance Code is
mandatorily applicable to any Lender, for that day, the ceiling shall be the
"weekly ceiling" as defined in the Texas Finance Code, provided that if any
applicable Law permits greater interest, the Law permitting the greatest
interest shall apply. In no event shall Chapter 346 of the Texas Finance Code
apply to this Agreement or any other Loan Document, or any transactions or loan
arrangement provided or contemplated hereby or thereby. In no event shall the
aggregate "interest" (as defined in section 347 of the Criminal Code (Canada))
payable under the Loan Documents exceed the maximum effective annual rate of
interest on the "credit advanced" (as defined in that section) permitted under
that section and, if any payment, collection or demand pursuant to this
Agreement in respect of "interest" (as defined in that section) is determined to
be contrary to the provisions of that section, such payment, collection or
demand shall be deemed to have been made by mutual mistake of Canadian Revolver
Borrower, Term Borrower, Canadian Administration Agent, Canadian Revolver
Lenders, and Term Lenders and the amount of such excess payment or collection
shall be refunded to the relevant Borrower. For purposes of the Canadian
Revolver Notes and the Term Notes, the effective annual rate of interest shall
be determined in accordance with generally accepted actuarial practices and
principles over the term applicable thereto on the basis of annual compounding
of the lawfully permitted rate of interest and, in the event of dispute, a
certificate of a Fellow of the Canadian
115
Institute of Actuaries appointed by Canadian Administration Agent shall be prima
facie evidence, for the purposes of such determination.
Section 10.11. Termination; Limited Survival. In its sole and absolute
-----------------------------
discretion Borrower may at any time that no Obligations are owing or outstanding
elect in a written notice delivered to Administrative Agent to terminate this
Agreement. Upon receipt by Administrative Agent of such a notice, if no
Obligations are then owing or outstanding this Agreement and all other Loan
Documents shall thereupon be terminated and the parties thereto released from
all prospective obligations thereunder. Notwithstanding the foregoing or
anything herein to the contrary, any waivers or admissions made by any
Restricted Person in any Loan Document, any Obligations under Sections 3.2
through 3.6, and any obligations which any Person may have to indemnify or
compensate any Lender Party shall survive any termination of this Agreement or
any other Loan Document. At the request and expense of Borrower, Administrative
Agent shall prepare and execute all necessary instruments to reflect and effect
such termination of the Loan Documents. Administrative Agent is hereby
authorized to execute all such instruments on behalf of all Lenders, without the
joinder of or further action by any Lender.
Section 10.12. Severability. If any term or provision of any Loan
------------
Document shall be determined to be illegal or unenforceable all other terms and
provisions of the Loan Documents shall nevertheless remain effective and shall
be enforced to the fullest extent permitted by applicable Law.
Section 10.13. Counterparts. This Agreement may be separately executed
------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Agreement.
Section 10.14. Waiver of Jury Trial, Punitive Damages, etc. Restricted
-------------------------------------------
Persons and Lender Parties mutually hereby knowingly, voluntarily, and
intentionally waive the right to a trial by jury in respect of any claim based
hereon, arising out of, under or in connection with, this Agreement or any other
Loan Documents contemplated to be executed in connection herewith or any course
of conduct, course of dealings, statements (whether verbal or written) or
actions of any party. This waiver constitutes a material inducement for Lenders
to enter into this Agreement and the other Loan Documents and make the Loans.
Each Borrower and each Lender Party hereby further (a) irrevocably waives, to
the maximum extent not prohibited by Law, any right it may have to claim or
recover in any such litigation any "Special Damages," as defined below, (b)
certifies that no party hereto nor any representative or agent or counsel for
any party hereto has represented, expressly or otherwise, or implied that such
party would not, in the event of litigation, seek to enforce the foregoing
waivers, and (c) acknowledges that it has been induced to enter into this
Agreement, the other Loan Documents and the transactions contemplated hereby and
thereby by, among other things, the mutual waivers and certifications contained
in this section. As used in this section, "Special Damages" includes all
special, consequential, exemplary, or punitive damages
116
(regardless of how named), but does not include any payments or funds which any
party hereto has expressly promised to pay or deliver to any other party hereto.
Section 10.15. Amendment and Restatement. Upon satisfaction with each of
--------------------------
the conditions set forth in Section 4.1 (except any condition the performance of
which has been waived as a condition to the initial Loan or initial issuance of
a Letter of Credit pursuant to this Agreement), this Agreement shall be deemed
to amend and restate in their entirety the Existing Agreement, at which time
(the "Effective Time") each Lender and each Restricted Person hereby agrees that
(i) the Aggregate Percentage Share of each Lender and the Percentage Share of
each Lender with respect to US Loans, Canadian Revolver Loans, and Term Loans
shall be as set forth in the definition to this Agreement, (ii) the loans
outstanding under the Existing Agreement and all accrued and unpaid interest
thereon (but not any letters of credit issued and outstanding under the Existing
Agreement and reimbursement obligations with respect thereto, which are to be
deemed to be outstanding under and governed by the Marketing Credit Agreement as
provided therein), and all accrued and unpaid fees and expenses under the
Existing Agreement (the "Outstanding Obligations") shall be deemed to be
outstanding under and governed by this Agreement, and (iii) any party named as a
"Lender" under the Existing Agreement that is not a signatory hereto as a Lender
under this Agreement (an "Exiting Lender") shall cease to be a Lender and shall
be released from its obligations under the Existing Agreement and this
Agreement. At the Effective Time, the Borrower shall make such adjustments in
the Loans, including the borrowing of additional Loans and the repayment of
Loans under the Existing Agreement plus all applicable accrued interest, fees
and expenses (including any costs under Article III of the Existing Agreement)
as shall be necessary to repay in full all Exiting Lenders and to provide for
Loans by each Lender in the amount of its new Percentage Share of US Loans,
Canadian Revolver Loans, and Term Loans, as applicable, as of the Effective
Time.
Section 10.16. CanPet Acquisition. Lender Parties hereby consent to the
------------------
CanPet Acquisition, subject to the following:
(a) Administrative Agent shall have received and approved copies of
all environmental evaluations, reports or reviews related to properties to
be acquired pursuant to the CanPet Acquisition, and there shall be no
existing or potential environmental liabilities disclosed thereunder or
otherwise existing except as disclosed by Borrowers to Administrative
Agent and Lender Parties prior to the date hereof.
(b) Administrative Agent and each Lender Party shall have received
any updated or revised business and/or financial projections with respect
to the assets and operations to be acquired pursuant to the CanPet
Acquisition, and no such projection shall materially and adversely differ
from those projections previously delivered to Administrative Agent and
Lenders.
(c) The CanPet Acquisition shall exclude the acquisition of any
existing or potential environmental or litigation liabilities incurred
prior to the CanPet Acquisition Closing Date, except as disclosed by
Borrowers to Administrative Agent and Lender Parties prior to the date
hereof, and US Borrower and Canadian Revolver Borrower, as
117
acquirers, shall have received an environmental indemnity providing for a
deductible of not more than C$50,000 in the aggregate (not applicable with
respect to environmental liabilities disclosed to Administrative Agent and
Lender Parties prior to the date hereof) and a cap of not less than
C$3,000,000 in the aggregate, to be effective for not less than two years
with respect to on-site contamination and three years with respect to off-
site contamination following the CanPet Acquisition Closing Date, and
otherwise reasonably satisfactory to Administrative Agent with respect to
such liabilities.
(d) Administrative Agent shall have received and approved copies of
all CanPet Acquisition Documents and all other related documents as
Administrative Agent may request.
(e) The cash portion of the purchase price shall not exceed
C$39,700,000, subject to purchase price adjustments with respect to
purchased inventory, prepayment made or received, and income earned from
the March 1, 2001 effective date of the CanPet Acquisition through the
CanPet Acquisition Closing Date, as provided for in the purchase agreement
included in the CanPet Acquisition Documents.
(f) Both immediately prior to and immediately following the
consummation of the CanPet Acquisition, no Material Adverse Change shall
have occurred since December 31, 2000, and no Default or Event of Default
shall have occurred and be continuing.
(g) Canadian Subsidiaries shall have delivered Security Documents
pursuant to Section 6.14 of this Agreement with respect to the properties
acquired pursuant to the CanPet Acquisition.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
118
IN WITNESS WHEREOF, this Agreement is executed as of the date first written
above.
U.S. BORROWER: PLAINS MARKETING, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
TERM BORROWER: PMC (NOVA SCOTIA) COMPANY
By: ______________________________________
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
CANADIAN REVOLVER
BORROWER: PLAINS MARKETING CANADA, L.P.
By: PMC (Nova Scotia) Company,
its general partner
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
GUARANTORS: ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇, Exec. Vice President
Address for U.S. Borrower, Term ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Revolver ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Borrower and Guarantors: Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
119
FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and
a Lender
By: _________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: MADE 10008A
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET SECURITIES, INC.,
Lead Arranger and Book Manager
By: _________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
120
FIRST UNION NATIONAL BANK,
Syndication Agent and a Lender
By: ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. Vice Pres.
Address:
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.,
Documentation Agent and a Lender
By: __________________________________
Name:
Title:
Address:
Energy Finance Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
122
BANK ONE, NA (MAIN OFFICE CHICAGO),
Senior Managing Agent and a Lender
By: __________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
123
FORTIS CAPITAL CORP.
Senior Managing Agent and a Lender
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
124
U.S. BANK NATIONAL ASSOCIATION,
a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇),
NATIONAL ASSOCIATION, a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 404-877-_____
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
With Copy to:
Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
128
CREDIT AGRICOLE INDOSUEZ,
a Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC.,
a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇.▇.,
a Lender
By: _____________________________________
Name:
Title:
Address:
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.,
a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
132
COMERICA BANK-TEXAS,
a Lender
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
133
BNP PARIBAS, a Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ (EC); x2029 (MW)
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
134
▇▇▇▇▇▇ FINANCIAL, INC., a Lender
By:________________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (312) 441-736
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ Administration Agent
By:____________________________________________
Name:
Title:
Address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West
▇▇/▇▇/ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Vice President, Loan Syndications -
Agency
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ BANK,
a Lender
By:______________________________________
Name:
Title:
Address:
800 Home Oil Tower
▇▇▇ - ▇/▇▇/ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a Lender
By:__________________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. ▇▇▇ ▇▇▇.
Attention: ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇), a Lender
By:__________________________________________
Name:
Title:
By:__________________________________________
Name:
Title:
Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Royal Trust Tower
T.D. Centre
Toronto, Ontario. M5K 1N8.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ (EC); x2029 (MW)
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
139
▇▇▇▇▇▇ FINANCIAL CANADA, LTD., a Lender
By:______________________________________
Name:
Title:
Address:
▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
140
PILGRIM PRIME RATE TRUST, a Lender
By: ING Pilgrim Investments, LLC
as its investment manager
By:________________________________________
Name:
Title:
Address:
c/o ING Pilgrim Investments LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
141
PILGRIM SENIOR INCOME FUND, a Lender
By: ING Pilgrim Investments, LLC
as its investment manager
By:___________________________________
Name:
Title:
Address:
c/o ING Pilgrim Investments LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
142
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME
INCOME TRUST, a Lender
By:___________________________________
Name:
Title:
Address:
c/o Morgan ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Advisors Inc.
Two World Trade Center, 72/nd/ Floor
New York, New York 10048
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇
Telephone: (212) 392--3415 (SF), -2883 (JK)
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
143
EMERALD ORCHARD LIMITED, a Lender
By:_____________________________________
Name:
Title:
Address:
c/o Highland Capital Management, L.P.
1300 Two Galleria Tower
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ #▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
144