Exhibit 10.17
Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
[Revolving Credit Facility]
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of the
26th day of February, 2001, by and among PLAINS MARKETING, L.P. ("Borrower"),
ALL AMERICAN PIPELINE, L.P. ("All American") and PLAINS ALL AMERICAN PIPELINE,
L.P. ("Plains MLP"), as guarantors, FLEET NATIONAL BANK, as Administrative Agent
(in such capacity, "Administrative Agent"), and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent and
Lenders entered into that certain Credit Agreement [Revolving Credit Facility]
dated as of May 8, 2000 (as amended, restated, or supplemented to the date
hereof, the "Original Agreement") for the purposes and consideration therein
expressed, pursuant to which Lenders became obligated to make and made loans to
Borrower as therein provided; and
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent, and
Lenders desire to amend the Original Agreement for the purposes described
herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(S) 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this First Amendment to Credit Agreement.
"Amendment Documents" means this Amendment, the Renewal Notes, and the
Amendments to Security Documents as described in Section 3.1(c) hereof.
"Credit Agreement" means the Original Agreement as amended hereby.
"Original Notes" means the "Notes" referred to and defined as such in
the Original Agreement.
Revolving Credit Facility
1
"Renewal Notes" means the renewal promissory notes of Borrower in the
form attached hereto as Exhibit A, expressly renewing, extending and
increasing the Original Notes.
ARTICLE II. -- Amendments
(S) 2.1. Definitions. (a) Applicable Leverage Level. The table set
forth in the definition of "Applicable Leverage Level" set forth in Section 1.1
of the Original Agreement is hereby amended in its entirety to read as follows:
Applicable
Leverage Level Leverage Ratio
----------------- ------------------------------------
Level I greater than or equal to 4.50 to 1.0
Level II greater than or equal to 4.25 to 1.0
but less than 4.50 to 1.0
Level III greater than or equal to 4.00 to 1.0
but less than 4.25 to 1.0
Level IV greater than or equal to 3.50 to 1.0
but less than 4.00 to 1.0
Level V greater than or equal to 3.00 to 1.0
but less than 3.50 to 1.0
Level VI greater than or equal to 2.25 to 1.0
but less than 3.00 to 1.0
Level VII 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
(b) Base Rate Margin: The table set forth in the definition of "Base
Rate Margin" set forth in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
Revolving Credit Facility
2
Applicable Leverage Level Base Rate Margin
-----------------------------------------------
Level I 1.500%
-----------------------------------------------
Level II 1.250%
-----------------------------------------------
Level III 1.125%
-----------------------------------------------
Level IV 1.000%
-----------------------------------------------
Level V 0.500%
-----------------------------------------------
Level VI 0.250%
-----------------------------------------------
Level VII or Level VIII 0.000%
-----------------------------------------------
(c) Commitment. The definition of "Commitment" set forth in Section 1.1 of
the Original Agreement is hereby amended in its entirety to read as follows:
"Commitment" means, subject to the last sentence of Section 2.1,
$471,666,666.67. Each Lender's Commitment shall be the amount initially
set forth on the Lender Schedule, as such Lender's Commitment may be
reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.5(c), or increased from time to time
pursuant to the last sentence of Section 2.1.
(d) Commitment Fee Rate. The table set forth in the definition of
"Commitment Fee Rate" set forth in Section 1.1 of the Original Agreement is
hereby amended in its entirety to read as follows:
Applicable Leverage Level Commitment Fee Rate
---------------------------------------------------------
Level I or Level II or Level III 0.500%
or Level IV or Level V
---------------------------------------------------------
Level VI or Level VII 0.375%
---------------------------------------------------------
Level VIII 0.250%
---------------------------------------------------------
(e) Consolidated EBITDA. Clause (5) of the definition of "Consolidated
EBITDA" set forth in Section 1.1 of the Original Agreement is hereby renumbered
clause (6), and a new clause (5) is hereby added immediately before "minus"
preceding such clause (6), to read as follows:
plus (5) settlement payments made in such period with respect to litigation
arising out of the unauthorized trading activity by Borrower during the
period of January 1, 1999 to November 20, 1999, not to exceed an aggregate
amount of $6,963,000
Revolving Credit Facility
3
(f) Consolidated Funded Indebtedness. The proviso at the end of the last
sentence of the definition of "Consolidated Funded Indebtedness" set forth in
Section 1.1 of the Original Agreement is hereby amended in its entirety to read
as follows:
provided, however, that Consolidated Funded Indebtedness shall not include
Indebtedness in respect of letters of credit, Cash and Carry Purchases, or
margin deposits.
(g) Letter of Credit Fee Rate. The table set forth in the definition of
"Letter of Credit Fee Rate" set forth in Section 1.1 of the Original Agreement
is hereby amended in its entirety to read as follows:
Applicable Leverage Level LC Fee Rate
------------------------------------------
Level I 3.000%
------------------------------------------
Level II 2.750%
------------------------------------------
Level III 2.625%
------------------------------------------
Level IV 2.500%
------------------------------------------
Level V 2.000%
------------------------------------------
Level VI 1.750%
------------------------------------------
Level VII 1.500%
------------------------------------------
Level VIII 1.250%
------------------------------------------
(h) LIBOR Rate Margin. The table set forth in the definition of "LIBOR
Rate Margin" set forth in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
Revolving Credit Facility
4
Applicable Leverage Level LIBOR Rate Margin
------------------------------------------------
Level I 3.000%
------------------------------------------------
Level II 2.750%
------------------------------------------------
Level III 2.625%
------------------------------------------------
Level IV 2.500%
------------------------------------------------
Level V 2.000%
------------------------------------------------
Level VI 1.750%
------------------------------------------------
Level VII 1.500%
------------------------------------------------
Level VIII 1.250%
------------------------------------------------
(i) Maturity Date. The reference to "April 30, 2004" set forth in the
definition of "Maturity Date" set forth in Section 1.1 of the Original Agreement
is hereby amended to refer instead to "April 30, 2005".
(j) Permitted Investments. Clause (c) of the definition of "Permitted
Investments" set forth in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
(c) Investments by Plains MLP or any of its Subsidiaries in:
(I) any Wholly Owned Subsidiary of Plains MLP which is a Guarantor,
other than any Canadian Subsidiary or
(II) any Canadian Subsidiary, provided that (A) Borrower shall notify
Administrative Agent and each Lender in the event the aggregate amount of
such Investments in Canadian Subsidiaries shall exceed $100,000 and (B) the
aggregate amount of such Investments in Canadian Subsidiaries shall not
exceed (x) $100,000 in the aggregate prior to the earlier of the CanPet
Acquisition Closing Date and Xxxxxx Acquisition Closing Date, (y)
$27,000,000 (exclusive of any Investment described in clause (z) below)
with respect to the CanPet Acquisition, the proceeds of which shall be used
to consummate the CanPet Acquisition, to fund contango transactions and for
working capital purposes with respect to the CanPet Acquisition, and (z)
$57,000,000 (exclusive of any Investment described in clause (y) above)
with respect to the Xxxxxx Acquisition, the proceeds of which shall be used
to consummate the Xxxxxx Acquisition, to fund contango transactions and for
working capital purposes with respect to the Xxxxxx Acquisition.
The reference to "$5,000,000" set forth in clause (d) of such definition is
hereby amended to refer instead to "the Dollar Equivalent of $5,000,000".
Revolving Credit Facility
5
(k) Canadian Dollars, Canadian Subsidiaries and CanPet Acquisition. The
following definitions of "Canadian Dollars", "Canadian Subsidiaries", "CanPet
Acquisition", "Canpet Acquisition Documents" and "Canpet Closing Date" are
hereby added to Section 1.1 of the Original Agreement immediately following the
definition of "Business Day", to read as follows:
"Canadian Dollars" and "C$" means the lawful currency of Canada.
"Canadian Subsidiaries" means each of PMC (Nova Scotia) Company, a
Nova Scotia unlimited liability company, Plains Marketing Canada, L.P., an
Alberta limited partnership, and each of their Subsidiaries, whether now
owned or hereafter acquired.
"CanPet Acquisition" means the acquisition by Borrower and Plains
Marketing Canada, L.P. 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 Documents" means the purchase and sale agreement,
title transfer documents and all other agreements or instruments executed
and delivered by Borrower, Plains Marketing Canada, L.P. or any Affiliate
in connection therewith to consummate the CanPet Acquisition.
"CanPet Acquisition Closing Date" means the date on which the CanPet
Acquisition shall have been consummated and Borrower and Plains Marketing
Canada, L.P. shall have taken good and defensible title to the assets
subject thereof.
(l) Dollars and Dollar Equivalent. The following definitions of "Dollars"
and "Dollar Equivalent" are hereby added to Section 1.1 of the Original
Agreement immediately following the definition of "Disclosure Schedule", to read
as follows:
"Dollars" and "$" means U.S. dollars except where otherwise specified.
"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 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.
(m) Xxxxxx Acquisition. The following definitions of "Xxxxxx Acquisition",
"Xxxxxx Acquisition Documents" and "Xxxxxx Acquisition Closing Date" are hereby
added to Section 1.1 of the Original Agreement immediately following the
definition of "Xxxxx'x", to read as follows:
Revolving Credit Facility
6
"Xxxxxx Acquisition" means the acquisition by Plains Marketing Canada,
L.P. of certain assets from Xxxxxx Oil Company Ltd. as previously disclosed
by Borrower to Administrative Agent and Lenders pursuant to the Xxxxxx
Acquisition Documents.
"Xxxxxx Acquisition Documents" means the purchase and sale agreement,
title transfer documents and all other agreements or instruments executed
and delivered by Plains Marketing Canada, L.P. or any Affiliate in
connection therewith to consummate the Xxxxxx Acquisition.
"Xxxxxx Acquisition Closing Date" means the date on which the Xxxxxx
Acquisition shall have been consummated and Plains Marketing Canada, L.P.
shall have taken good and defensible title to the assets subject thereof.
(S) 2.2. Amendment of Marketing Credit Agreement. The second sentence of
Section 1.3 of the Original Agreement is hereby amended by adding the following
phrase at the end thereof:
, as amended by the First Amendment to Credit Agreement [Letter of Credit
and Hedged Inventory Facility] dated as of February 26, 2001 and as amended
and restated as contemplated by and provided for in such First Amendment.
(S) 2.2A. Maximum Commitment. Section 2.1 of the Original Agreement is
hereby amended by adding the following sentence at the end thereof:
Borrower shall have the right, without the consent of the Lenders but with
the prior approval of the Administrative Agent, not to be unreasonably
withheld, to cause from time to time an increase in the Commitment by
adding to this Agreement one or more additional Lenders or by allowing one
or more Lenders to increase their respective Commitments; provided however
(i) no Event of Default shall have occurred hereunder which is continuing,
(ii) no such increase shall result in the aggregate Commitment hereunder to
exceed $500,000,000, (iii) no Lender's Commitment shall be increased
without such Lender's consent, and (iv) on the effective date of any such
increase, there shall be no outstanding LIBOR Loans hereunder.
(S) 2.3. Notices and Environmental Matters. The references to
"$1,000,000" set forth in Section 6.4(e), 6.12(b) and 6.12(c) of the Original
Agreement are hereby amended to refer instead to "the Dollar Equivalent of
$1,000,000".
(S) 2.4. Indebtedness under Marketing Credit Agreement and Issuance of
Additional Indebtedness. The reference to "$350,000,000" set forth in Section
7.1(e) of the Original Agreement is hereby amended to refer instead to
"$300,000,000".
Clause (g) of Section 7.1 of the Original Agreement is hereby redesignated
clause (h), and a new clause (g) is hereby added immediately before such clause
(h), to read as follows:
Revolving Credit Facility
7
(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 Loans to Borrower, (5) upon the receipt of net proceeds from
the original issuance of such Indebtedness, the Commitment shall be
permanently 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 bonds 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.
The reference to "$25,000,000" set forth in Section 7.1(g) of the Original
Agreement (to be redesignated as clause (h) as set forth in the prior paragraph
hereof) is hereby amended to refer instead to "the Dollar Equivalent of
$25,000,000".
(S) 2.5. Limitation on Sales of Property. The reference to "$10,000,000"
set forth in Section 7.5(c) of the Original Agreement is hereby amended to refer
instead to "the Dollar Equivalent of $10,000,000".
(S) 2.6. Debt Coverage Ratio. Section 7.12 of the Original Agreement is
hereby amended in its entirety to read as follows:
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:
(i) prior to both the CanPet Acquisition Closing Date and Xxxxxx
Acquisition Closing Date: (A) 4.0 to 1.0, in the case of any
determination during the period from the date hereof through and
including March 31, 2002, and (B) 3.75 to 1.0, in the case of any
determination thereafter;
(ii) on and after the CanPet Acquisition Closing Date, and prior
to the Xxxxxx Acquisition Closing Date (if the CanPet Acquisition
Closing Date shall occur prior to the Xxxxxx Acquisition Closing
Date): (I) 4.25 to 1.0, in the case of any determination during the
period from the date hereof through and including December 30, 2002,
and (II) 4.00 to 1.0, in the case of any determination thereafter; and
Revolving Credit Facility
8
(iii) on and after the Xxxxxx Acquisition Closing Date (whether
or not the CanPet Acquisition Closing Date has occurred): (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 during the period 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 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.
(S) 2.7. Debt to Capital Ratio. Section 7.14 of the Original Agreement is
hereby amended in its entirety to read as follows:
Section 7.14 Debt to Capital Ratio. The ratio of (a) all
Consolidated Funded Indebtedness to (b) the sum of Consolidated Funded
Indebtedness plus Consolidated Net Worth will never be greater than:
(i) prior to both the CanPet Acquisition Closing Date and the
Xxxxxx Acquisition Closing Date: 0.65 to 1.0 at any time;
(ii) on and after the CanPet Acquisition Closing Date, and prior
to the Xxxxxx Acquisition Closing Date (if the CanPet Acquisition
Closing Date shall occur prior to the Xxxxxx Acquisition Closing
Date): 0.67 to 1.0 at any time prior to December 30, 2002, and 0.65 to
1.0 thereafter; and
(iii) on and after the Xxxxxx Acquisition Closing Date (whether
or not the CanPet Acquisition Closing Date has occurred): 0.73 to 1.0
at any time prior to December 30, 2002, and 0.65 to 1.0 thereafter.
Revolving Credit Facility
9
(S) 2.8. Events of Default. The references to "$2,500,000" set forth in
Section 8.1(g), 8.1(i)(iv), 8.1(i)(v) and 8.1(i)(vi) of the Original Agreement
are hereby amended to refer instead to "the Dollar Equivalent of $2,500,000".
(S) 2.9. Lender Schedules. Each Lender's Initial Commitment and
Percentage Share set forth on its Lender Schedule attached as Schedule 1 to the
Original Agreement is hereby amended to refer instead to such Lender's Initial
Commitment and Percentage Share as set forth opposite its signature block
hereon. Schedule 1 to the Original Agreement is further hereby amended by
adding new Lender Schedules to read as set forth on the Lender Schedules
attached hereto. The Composite Lender Schedule set forth on the last page of
the Lender Schedule attached as Schedule 1 to the Original Agreement is hereby
amended in its entirety to read as set forth on the Composite Lender Schedule
attached hereto.
(S) 2.10. Schedules and Exhibits. Schedule 3 and Exhibit A attached to the
Original Agreement are hereby amended in their respective entirety to read as
set forth on Schedule 3 and Exhibit A attached hereto.
(S) 2.11. Consent to Transfers and Issuances of Limited Partner Interests
in Plains Marketing Canada, L.P. As of the date hereof, Plains Marketing Canada
LLC, a Delaware limited liability company, owns all of the outstanding limited
partner interests in Plains Marketing Canada, L.P., an Alberta limited
partnership. Lenders hereby consent to the transfer by Plains Marketing Canada
LLC, a Delaware limited liability company, of any or all such outstanding
limited partner interests in Plains Marketing Canada, L.P. to Borrower, and
waive any Default or Event of Default under Section 7.4(b) or Section 7.7 of the
Credit Agreement caused thereby.
As of the date hereof, all of the outstanding limited partner interests in
Plains Marketing Canada, L.P., an Alberta limited partnership, are owned,
directly or indirectly, by Borrower. Lenders hereby consent to the issuance by
Plains Marketing Canada, L.P., an Alberta limited partnership, of 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, and waive any Default or Event of Default under Section
7.4 or Section 7.6 of the Credit Agreement caused thereby, 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
Plains Marketing Canada, L.P. 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.
Revolving Credit Facility
10
In the event any limited partner interests issued by Plains Marketing
Canada, L.P., an Alberta limited partnership, to CanPet Energy Group (USA), Inc.
or CanPet Energy Group Inc. are exchanged for units issued by Plains MLP,
Lenders hereby consent to the contribution by Plains MLP to Borrower of any and
all such partnership interests, and waive any Default or Event of Default under
Section 7.4(c) or Section 7.5 of the Credit Agreement caused thereby.
(S) 2.12. Consent to CanPet Acquisition. Lenders hereby consent to the
CanPet Acquisition (as defined in the Credit Agreement as amended hereby),
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 Borrower to Administrative Agent
and Lenders prior to the date hereof.
(b) Administrative Agent and each Lender 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
Borrower to Administrative Agent and Lenders prior to the date hereof, and
Borrower and Plains Marketing Canada, L.P., as 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 Lenders
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
$26,000,000.
(f) Both immediately prior to and immediately following the
consummation of the CanPet Acquisition, no Material Adverse Change shall
have occurred since December 31, 1999, and no Default or Event of Default
shall have occurred and be continuing.
Revolving Credit Facility
11
(g) Canadian Subsidiaries shall have delivered Security Documents
pursuant to Section 6.14 of the Credit Agreement with respect to the
properties acquired pursuant to the CanPet Acquisition, the definition of
"Marketing Credit Priority Collateral" set forth in the Intercreditor
Agreement dated May 8, 2000 among the Administrative Agent, Lenders and the
administrative agent and lenders under the Marketing Credit Agreement shall
be amended to include properties of the type described therein owned by
Canadian Subsidiaries as well as Borrower, and pursuant thereto such Liens
on such Canadian Subsidiaries' property securing the Obligations shall be
subordinated to the Liens on such Canadian Subsidiaries' property securing
the Indebtedness under the Marketing Credit Agreement.
(S) 2.13. Consent to Xxxxxx Acquisition. Lenders hereby consent to the
Xxxxxx 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 Xxxxxx Acquisition, and there shall be no
existing or potential environmental liabilities disclosed thereunder or
otherwise existing except as disclosed by Borrower to Administrative Agent
and Lenders prior to the date hereof.
(b) Administrative Agent and each Lender 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 Xxxxxx
Acquisition, and no such projection shall materially and adversely differ
from those projections previously delivered to Administrative Agent and
Lenders.
(c) The Xxxxxx Acquisition shall exclude the acquisition of any
existing or potential environmental or litigation liabilities incurred
prior to the Xxxxxx Acquisition Closing Date, except as disclosed by
Borrower to Administrative Agent and Lenders prior to the date hereof, and
Plains Marketing Canada, L.P., as acquirer, shall have received an
environmental indemnity with respect to all environmental liabilities
disclosed to Administrative Agent and Lenders prior to the date hereof and
further providing for a deductible of not more than $300,000 in the
aggregate, with a $20,000 deductible per site thereafter, and a cap of not
less than $3,000,000 in the aggregate, with respect to all other
environmental liabilities, and otherwise reasonably satisfactory to
Administrative Agent with respect to such liabilities.
(d) Administrative Agent shall have received and approved copies of
all Xxxxxx Acquisition Documents and all other related documents as
Administrative Agent may request.
(e) The cash portion of the purchase price shall not exceed
$155,000,000 (subject to upward adjustment for net working capital
adjustments not to exceed $6,000,000 in the aggregate).
Revolving Credit Facility
12
(f) Both immediately prior to and immediately following the
consummation of the Xxxxxx Acquisition, no Material Adverse Change shall
have occurred since December 31, 1999, and no Default or Event of Default
shall have occurred and be continuing.
(g) On the Xxxxxx Acquisition Closing Date: (1) Canadian Subsidiaries
shall on the Xxxxxx Acquisition Closing Date deliver Security Documents
pursuant to Section 6.14 of the Credit Agreement (together with opinions of
legal counsel for Canadian Subsidiaries and related corporate documents and
records; documents evidencing governmental authorizations, consents,
approvals, licenses and exemptions; and certificates of public officials
and of officers and representatives of Restricted Persons as Administrative
Agent may request) with respect to all of their properties, and (2) the
Intercreditor Agreement dated May 8, 2000 among the Administrative Agent,
Lenders and the administrative agent and lenders under the Marketing Credit
Agreement shall be amended and restated to, among other things, amend the
definition of "Marketing Credit Priority Collateral" to include properties
of the type described therein owned by Canadian Subsidiaries as well as
Borrower, and pursuant thereto such Liens on such Canadian Subsidiaries'
property securing the Obligations shall be subordinated to the Liens on
such Canadian Subsidiaries' property securing the Indebtedness under the
Marketing Credit Agreement.
(S) 2.14. Consent to Restated Agreement. Lenders hereby consent to (a) the
addition to the Credit Agreement of a $100,000,000 term loan facility to PMC
(Nova Scotia) Company, a Nova Scotia unlimited liability company and a Canadian
Subsidiary, and $30,000,000 Canadian working capital revolving credit facility
to PMC (Nova Scotia) Company, a Nova Scotia unlimited liability company, or
Plains Marketing Canada, L.P., an Alberta limited partnership, or both of them
if applicable, to be funded in connection with the consummation of the Xxxxxx
Acquisition, pursuant to the terms and conditions set forth on the indicative
term sheet attached hereto as Annex I, and to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in
respect thereof to share ratably in the benefits of this Agreement and the other
Loan Documents with the Loans and LC Obligations and the accrued interest and
fees in respect thereof and pari passu with respect to all Collateral
thereunder, subject only to the Intercreditor Agreement described in Section
2.12, and (b) the inclusion of the outstanding commitments of all lenders under
the Credit Agreement, whether Lenders, term lenders or Canadian working capital
revolver lenders, whether drawn or undrawn, in any determination of Majority
Lenders (other than with respect to extensions of maturity or reductions in
amortization of a facility, which shall include only the commitments of lenders
under such facility with respect to determinations thereof).
In furtherance of the foregoing, each Lender hereby acknowledges and agrees
that it shall, subject to reasonable documentation review and approval of
Majority Lenders, execute and deliver (a) an amended and restated credit
agreement, adding such facilities to the Credit Agreement, and (b) an amended
and restated intercreditor agreement among all lenders under the facilities
under the Credit Agreement, as so amended and restated, and under the Marketing
Credit Agreement, providing for, among other things (i) such ratable sharing and
voting among
Revolving Credit Facility
13
all lenders under the facilities under the Credit Agreement as so amended and
restated as set forth above and (ii) an amendment to the definition of
"Marketing Credit Priority Collateral" in the existing Intercreditor Agreement
to include properties of the type described therein owned by Canadian
Subsidiaries as well as Borrower, and pursuant thereto Liens on all other
property securing the Indebtedness under the Marketing Credit Agreement shall be
subordinated to the Liens on such property securing the Obligations, and Liens
on such "Marketing Credit Priority Collateral" securing the Obligations shall be
subordinated to the Liens on such "Marketing Credit Priority Collateral"
securing the Indebtedness under the Marketing Credit Agreement. In consideration
of each Lender's execution and delivery of this Agreement and such Lender's
agreement to execute and deliver such amended and restated credit agreement and
intercreditor agreement, Borrower hereby agrees to pay to Administrative Agent
for the account of each Lender the amendment fees and/or work fees set forth in
that certain letter of even date herewith between Borrower and Administrative
Agent, on behalf of Lenders.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of the
date first above written when, and only when:
(a) Administrative Agent shall have received, at Administrative Agent's
office, a counterpart of this Amendment executed and delivered by Borrower and
Majority Lenders (and with respect to Section 2.1(i), all Lenders), and
consented to by each Guarantor;
(b) Borrower shall have issued and delivered to Administrative Agent, for
subsequent delivery to each Lender, a Renewal Note with appropriate insertions
payable to the order of such Lender, duly executed on behalf of Borrower, dated
the date hereof,
(c) Restricted Persons shall have executed and delivered to Administrative
Agent Amendments to Security Documents amending the description of the secured
indebtedness therein to reflect the issuance of the Renewal Notes;
(d) Administrative Agent shall have received an amendment fee paid by
Borrower for the account of each Lender equal to 0.15% of the amount such
Lender's revised Commitment set forth opposite its signature block hereto
exceeds such Lender's Commitment immediately prior to the effectiveness hereof,
and all other fees required to be paid to Administrative Agent or any Lender
pursuant to any Loan Documents, including fees and expenses of Xxxxxxxx & Xxxxxx
LLP, counsel to Administrative Agent; and
(e) Administrative Agent shall have additionally received all of the
following documents, each document (unless otherwise indicated) being dated the
date of receipt thereof by Administrative Agent, duly authorized, executed and
delivered, and in form and substance satisfactory to Administrative Agent:
(i) Marketing Credit Amendment. A contemporaneous amendment to the
Marketing Credit Agreement, decreasing the Maximum Facility Amount to
Revolving Credit Facility
14
$200,000,000, consenting to the CanPet Acquisition and the Xxxxxx
Acquisition on the same terms and conditions set forth herein, amending
certain financial covenants on the same terms and conditions set forth
herein, and amending various other provisions therein consistent with the
amendments set forth herein;
(ii) Opinions of Counsel for Restricted Persons. The written opinions
of Fulbright & Xxxxxxxx, L.L.P., special Texas and New York counsel to
Restricted Persons, and an opinion of Xxx Xxxxx, General Counsel for
Restricted Persons, addressed to Administrative Agent and Lenders, to the
effect that this Amendment, each Renewal Note and the other Amendment
Documents have been duly authorized, executed and delivered by Restricted
Persons, to the extent a party thereto, and that the Credit Agreement, each
Renewal Note and the other Amendment Documents constitute the legal, valid
and binding obligations of Restricted Persons, to the extent a party
thereto, enforceable in accordance with their respective terms (subject, as
to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency and similar laws and to moratorium laws and other laws affecting
creditors' rights generally from time to time in effect).
(iii) Officer's Certificate. A certificate of a duly authorized
officer of General Partner stating that all of the representations and
warranties set forth in Article IV hereof are true and correct at and as of
the time of such effectiveness.
(iv) Supporting Documents. (I) A Certificate of the Secretary of
General Partner dated the date of this Amendment certifying that attached
thereto is a true and complete copy of resolutions adopted by the Board of
Directors of General Partner authorizing the execution, delivery and
performance of this Amendment, each Renewal Note and the other Amendment
Documents by Restricted Persons and certifying the names and true
signatures of the officers of General Partner authorized to sign this
Amendment, each Renewal Note and the other Amendment Documents on behalf of
Restricted Persons, and (II) such supporting documents as Administrative
Agent may request.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrower. In
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrower represent and warrant to Administrative Agent and each
Lender that:
(a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that such representation and
warranty was made as of a specific date.
(b) Each Restricted Person is duly authorized to execute and deliver
this Amendment, each Renewal Note and each other Amendment Document, to the
extent a party thereto, and Borrower is and will continue to be duly
authorized to borrow and perform its obligations under the Credit
Agreement. Each Restricted Person has duly taken all action necessary to
authorize the execution and delivery of this Amendment,
Revolving Credit Facility
15
each Renewal Note and each other Amendment Document, to the extent a party
thereto, and to authorize the performance of their respective obligations
hereunder.
(c) The execution and delivery by each Restricted Person of this
Amendment, each Renewal note and each other Amendment Document, to the
extent a party thereto, the performance by each Restricted Person of its
respective obligations hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby, do not and will not
conflict with any provision of any Law or of the organizational documents
of any Restricted Person, or of any material agreement, judgment, license,
order or permit applicable to or binding upon any Restricted Person, or
result in the creation of any Lien upon any assets or properties of any
Restricted Person, except in favor of Administrative Agent for the benefit
of Lenders and other Permitted Liens. Except for those which have been duly
obtained, no consent, approval, authorization or order of any Tribunal or
third party is required in connection with the execution and delivery by
any Restricted Person of this Amendment, any Renewal Note or any other
Amendment Document, or to consummate the transactions contemplated hereby
and thereby.
(d) When duly executed and delivered, each of this Amendment, each
Renewal Note, each other Amendment Document, and each of the Loan
Documents, as amended hereby and thereby, will be a legal and binding
instrument and agreement of each Restricted Person to the extent a party
thereto, enforceable in accordance with its terms, (subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency and similar
laws applicable to creditors' rights generally).
(e) The business and financial projections with respect to the assets
and operations to be acquired pursuant to the CanPet Acquistion and the
Xxxxxx Acquisition previously delivered to Administrative Agent and Lenders
fairly present Restricted Persons' best projections with respect thereto,
and are based on reasonable historical business assumptions with respect to
such assets and operations as well as Restricted Persons' current business
operations and financial performance. No Material Adverse Change has
occurred since December 31, 1999.
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents
(including but not limited to each Guaranty), as they may be amended or affected
by this Amendment or any other Amendment Document, are hereby ratified and
confirmed in all respects by each Restricted Person to the extent a party
thereto. Any reference to the Credit Agreement in any Loan Document shall be
deemed to refer to this Amendment also. Any reference to the Notes in any other
Loan Document shall be deemed to be a reference to the Renewal Notes issued and
delivered pursuant to this Amendment. The execution, delivery and
effectiveness of this Amendment, the Renewal Notes and the other Amendment
Documents shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of Administrative
Revolving Credit Facility
16
Agent or any Lender under the Credit Agreement or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement or any other Loan
Document.
(S) 5.2. Ratification of Security Documents. Restricted Persons,
Administrative Agent, and Lenders each acknowledge and agree that any and all
indebtedness, liabilities or obligations arising under or in connection with the
LC Obligations, as amended hereby, or the Notes, as amended hereby, are
Obligations and are secured indebtedness under, are guarantied by, and are
secured by, each and every Security Document to which any Restricted Person is a
party. Each Restricted Person hereby re-pledges, re-grants and re-assigns a
security interest in and lien on every asset of the such Restricted Person
described as Collateral in any Security Document and re-guarantees all
Obligations, as amended hereby.
(S) 5.3. Ratification of Intercreditor Agreement. Each Lender hereby
acknowledges and confirms that all Obligations under the Credit Agreement, as
amended hereby, and the "Obligations" under the Marketing Credit Agreement, as
amended on the date hereof, shall be and shall remain subject to the terms and
entitled to the benefits of the Intercreditor Agreement.
(S) 5.4. Survival of Agreements. All representations, warranties,
covenants and agreements of the Restricted Persons herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making or granting of each Loan and the issuance and
delivery of the Renewal Notes, and shall further survive until all of the
Obligations are paid in full. All statements and agreements contained in any
certificate or instrument delivered by any Restricted Person hereunder or under
the Credit Agreement to Administrative Agent or any Lender shall be deemed to
constitute representations and warranties by, or agreements and covenants of,
such Restricted Person under this Amendment and under the Credit Agreement.
(S) 5.5. Loan Documents. This Amendment, each Renewal Note, and each
other Amendment Document is a Loan Document, and all provisions in the Credit
Agreement pertaining to Loan Documents apply hereto.
(S) 5.6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY
AND PERFORMANCE.
(S) 5.7. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
Revolving Credit Facility
17
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS MARKETING, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx
Executive Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx
Executive Vice President
ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx
Executive Vice President
Revolving Credit Facility
18
Lender's Initial Commitment: $71,904,761,91 FLEET NATIONAL BANK,
Percentage Share: 15.244826% as Administrative Agent and
Lender
By: /s/ Xxxxxxxx Xxxxx
-----------------------
Xxxxxxxx Xxxxx,
Managing Director
Lender's Initial Commitment: $61,666,666.67 FIRST UNION NATIONAL BANK, Lender
Percentage Share: 13.074205%
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $61,666,666.67 BANK OF AMERICA, N.A., Lender
Percentage Share: 13.074205%
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $46,666,666.67 BANK ONE, NA (MAIN OFFICE
Percentage Share: 9.893993% CHICAGO), successor by merger to
Bank One Texas, N.A., Lender
By: /s/
-------------------------
Name:
Title:
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $51,666,666.67 FORTIS CAPITAL CORP., Lender
Percentage Share: 10.954064%
By: /s/
-------------------------
Name:
Title:
Revolving Credit Facility
19
Lender's Initial Commitment: $21,333,333.33 U.S. BANK NATIONAL ASSOCIATION,
Percentage Share: 4.522968% Lender
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $24,976,190.47 BANK OF SCOTLAND, Lender
Percentage Share: 5.295305%
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $21,333,333.33 XXXXX FARGO BANK (TEXAS),
Percentage Share: 4.522968% NATIONAL ASSOCIATION, Lender
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $25,000,000 THE BANK OF NOVA SCOTIA, Lender
Percentage Share: 5.000000%
By: /s/
-------------------------
Name:
Title:
Lender's Initial Commitment: $17,833,333.33 CREDIT AGRICOLE INDOSUEZ, Lender
Percentage Share: 3.780919%
By: /s/
-------------------------
Name:
Title:
Revolving Credit Facility
20
Lender's Initial Commitment: $6,666,666.67 GUARANTY FEDERAL BANK, F.S.B.,
Percentage Share: 1.413428% Lender
By: /s/
--------------------------
Name:
Title:
Lender's Initial Commitment: $21,428,571.43 TORONTO DOMINION (TEXAS), INC.,
Percentage Share: 4.543160% Lender
By: /s/
--------------------------
Name:
Title:
Lender's Initial Commitment: $10,714,285.71 SOUTHWEST BANK OF TEXAS, N.A.,
Percentage Share: 2.271580% Lender
By: /s/
--------------------------
Name:
Title:
Lender's Initial Commitment: $21,666,666.67 UNION BANK OF CALIFORNIA, Lender
Percentage Share: 4.593640%
By: /s/
--------------------------
Name:
Title:
Lender's Initial Commitment: $7,142,857.14 COMERICA BANK-TEXAS, Lender
Percentage Share: 1.514387%
By: /s/
--------------------------
Name:
Title:
Revolving Credit Facility
21
CONSENT AND AGREEMENT
Each of the undersigned Guarantors hereby consents to the provisions of
this Amendment and the execution and delivery of the Renewal Notes and the other
Amendment Documents, and the transactions contemplated herein and therein and
hereby and thereby (i) acknowledges and agrees that any and all indebtedness,
liabilities or obligations arising under or in connection with the Renewal Notes
are Obligations and are secured indebtedness under, and are secured by, each and
every Security Document to which it is a party, (ii) re-pledges, re-grants and
re-assigns a security interest in and lien on all of its assets described as
collateral in any Security Document, (iii) ratifies and confirms its Guaranty
made by it for the benefit of Administrative Agent and Lenders, and (iv)
expressly acknowledges and agrees that such Guarantor guarantees all
indebtedness, liabilities and obligations arising under or in connection with
the Renewal Notes pursuant to the terms of such Guaranty, and agrees that its
obligations and covenants thereunder are unimpaired hereby and shall remain in
full force and effect.
PLAINS MARKETING CANADA LLC
By: Plains Marketing, L.P., its sole member
By: Plains All American Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Exec. Vice President
PMC (NOVA SCOTIA) COMPANY
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Exec. Vice President
PLAINS MARKETING CANADA, L.P.
By: PMC (Nova Scotia) Company,
its general partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Exec. Vice President
Revolving Credit Facility
22
