EXHIBIT 10.8
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[Revolving Credit Facility]
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT [Revolving
Credit Facility] (this "Amendment") dated as of the 25th day of May, 2001, by
and among PLAINS MARKETING, L.P. ("US Borrower"), ALL AMERICAN PIPELINE, L.P.
and PLAINS ALL AMERICAN PIPELINE, L.P., as guarantors, FLEET NATIONAL BANK, as
Administrative Agent, THE TORONTO-DOMINION BANK, as Canadian Agent, PMC (NOVA
SCOTIA) COMPANY ("Term Borrower"), PLAINS MARKETING CANADA, L.P. ("Canadian
Revolver Borrower"), and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, US Borrower, All American, Plains MLP, Administrative Agent,
Canadian Agent, Term Borrower, Canadian Revolver Borrower and Lenders entered
into that certain Amended and Restated Credit Agreement [Revolving Credit
Facility] dated as of May 4, 2001 (the "Original Agreement") for the purposes
and consideration therein expressed, pursuant to which Lenders became obligated
to make and made loans to US Borrower, Term Borrower and Canadian Revolver
Borrower as therein provided; and
WHEREAS, US Borrower, All American, Plains MLP, Administrative Agent,
Canadian Agent, Term Borrower, Canadian Revolver Borrower and Lenders desire to
amend the Original Agreement for the purposes described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to US Borrower, Term
Borrower and Canadian Revolver Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(S) 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this First Amendment to Amended and Restated
Credit Agreement [Revolving Credit Facility].
"Amendment Documents" means this Amendment.
"Credit Agreement" means the Original Agreement as
amended hereby.
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ARTICLE II. -- Amendments
(S) 2.1. Definitions. (a) The definitions of "Change of Control",
"Consolidated Net Worth", "General Partner" and "Wholly-Owned Subsidiary" set
forth in Section 1.1 of the Agreement are hereby amended in their entirety to
read as follows:
"Change of Control" means the occurrence of any of the
following events:
(i) Qualifying Directors cease for any reason to constitute
collectively a majority of the members of the board of directors of GP LLC
(the "Board") then in office;
(ii) GP LLC shall cease to be, directly or indirectly, the sole
legal and beneficial owner (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) of all of the general partner
interests (including all securities which are convertible into general
partner interests) of General Partner.
(iii) 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;
(iv) Plains MLP shall cease to be, directly or indirectly, the
sole legal and beneficial owner (as defined above) of all (a) equity
interests of Plains Newco LLC, (b) limited partner interests of US Borrower
and All American, (c) partner interests of Plains Marketing Canada, L.P.
(other than the limited partner interests of Plains Marketing Canada, L.P.
that may be issued to CanPet Energy Group (USA), Inc. or CanPet Energy
Group Inc. as permitted under Section 7.4), or (d) capital stock of PMC
(Nova Scotia) Company; or
(v) Neither General Partner nor Plains MLP shall continue to be,
directly or indirectly, the sole legal and beneficial owner of the general
partner interest in US Borrower and All American.
As used herein, "Qualifying Director" means (i) any Person designated by
any Qualifying Owner as its representative on the Board, (ii) so long as
Qualifying Owners own a majority of the ownership interests of GP LLC
entitling the holders thereof to vote in elections for directors of GP LLC,
any Person elected by a majority of such owners of GP LLC entitled to vote
thereon, and (iii) the chief executive officer of GP LLC, and "Qualifying
Owner" means Plains Resources Inc., Xxxxx Xxxxxxxx Investment Management,
EnCap Investments LLC, Sable Minerals, or any Affiliate of any of the
foregoing.
"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 Plains MLP's Consolidated liabilities, as
determined in accordance with GAAP. 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
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of comprehensive income (to the extent provided under GAAP as in effect on
the date hereof) shall be excluded in determining Consolidated Net Worth.
"General Partner" means Plains AAP, L.P., a Delaware limited
partnership, in its capacity as the sole general partner of Plains MLP.
"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.
(b) Clause (A) of the definition of "Permitted Acquisitions" set forth in
Section 1.1 of the Original Agreement is hereby amended in its entirety to read
as follows:
(A) the acquisition of all of the capital stock or other equity interest in
a Person
(c) The following definitions of "GP LLC" and "Plains Newco LLC" are hereby
added to Section 1.1 of the Original Agreement, for placement in alphabetical
order in relation to the other definitions in Section 1.1, to read as follows:
"GP LLC" means Plains All American GP LLC, a Delaware limited
liability company.
"Plains Newco LLC" means a Delaware limited liability company
or other entity that is wholly-owned, directly or indirectly, by Plains MLP
that is or may become the general partner of US Borrower and All American.
(S) 2.3. Limitation on Issuance of Securities. The reference to "to such
Restricted Person, to Plains MLP or to General Partner" set forth in the fourth
sentence of Section 7.4 of the Original Agreement is hereby amended to refer
instead to "to such Restricted Person or to Plains MLP".
(S) 2.4. Limitation on Dividends and Redemptions. The reference to ", and
to the General Partner pursuant to and in accordance with such Subsidiary's
partnership agreement" set forth in clause (i) of Section 7.6 of the Original
Agreement is hereby deleted.
(S) 2.5. Events of Default. The references to "General Partner" set forth
in clauses (i) and (j) of Section 8.1 of the Original Agreement are hereby
amended to refer instead to "GP LLC or General Partner".
(S) 2.6. Consents re: PAAI Sale Transaction. As generally set forth in
Plains MLP's Form 8-K and Plains Resources Inc.'s Form 8-K, each filed with the
Securities and Exchange Commission on May 10, 2001, Plains Resources Inc.
("Resources"), PAAI LLC and PAAI, the sole general partner of Plains MLP, US
Borrower and All American as of the date hereof, have entered into one or more
agreements providing in part for the sale and transfer by PAAI of a portion of
its general partner interest in Plains MLP and by PAAI LLC of certain of its
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subordinated interests in Plains MLP (together with all other transfers
contemplated in connection therewith, the "PAAI Sale Transaction"). To the
extent any transfer pursuant to the PAAI Sale Transaction shall, for the purpose
of Section 7.4 of the Credit Agreement, constitute the issue of any security,
then such issuance may violate Section 7.4 of the Credit Agreement, which would
constitute an Event of Default under Section 8.1(d) of the Credit Agreement.
Lenders hereby consent to such issuance and waive any violation of Section 7.4
of the Credit Agreement or Event of Default caused thereby. Additionally,
pursuant to the PAAI Sale Transaction, one or more Restricted Persons may enter
into transitional agreements with Resources and/or other Affiliates of such
Restricted Persons with respect to certain management and operational matters,
and such transactions with such Affiliates may violate Section 7.9 of the Credit
Agreement, which would constitute an Event of Default under Section 8.1(d) of
the Credit Agreement. Lenders hereby consent to Restricted Persons' entry into
such transitional agreements with such Affiliates and waive any violation of
Section 7.9 of the Credit Agreement or Event of Default caused thereby;
provided, such transitional agreements shall be on terms which are no less
favorable to such Restricted Persons than those which would have been obtainable
at the time in arm's-length transactions with Persons other than such
Affiliates.
(S)2.7. Waiver and Consent re: Restructuring. PAAI and Plains MLP may,
prior to the effectivness of this Amendment, restructure the general partner
interests in US Borrower and All American such that a direct or indirect wholly-
owned Subsidiary of Plains MLP will hold such general partner interests, which
would constitute a Change of Control under the Original Agreement and an Event
of Default under Section 8.1(k) of the Original Agreement. Lenders hereby
consent to any such restructuring prior to the effectiveness of this Amendment
and waive any Change of Control and Event of Default under Section 8.1(k) of the
Original Agreement caused thereby.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment, other than the waiver set forth
in Section 2.7 hereof, shall become effective on the closing date provided for
in the agreements governing the PAAI Sale Transaction contemporaneous with such
closing (and the waiver set forth in Section 2.7 hereof shall become effective
as of the date hereof), when and only when (i) Administrative Agent shall have
received, at Administrative Agent's office, a counterpart of this Amendment
executed and delivered by US Borrower, Term Borrower, Canadian Revolver
Borrower, Plains MLP, All American and Majority Lenders, (ii) Administrative
Agent shall have additionally received all of the following documents, each
document (unless otherwise indicated) being dated the date of receipt thereof by
Administrative Agent, duly authorized, executed and delivered, and in form and
substance satisfactory to Administrative Agent:
(A) Officer's Certificate. A certificate of a duly authorized
officer of General Partner, to the effect that all of the representations
and warranties set forth in Article IV hereof are true and correct at and
as of the date thereof, and
(B) Supporting Documents. Such supporting documents as
Administrative Agent may reasonably request.
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ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrowers. In
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrowers represent and warrant to Administrative Agent and each
Lender that:
(a) The representations and warranties contained in Article V
of the Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that such representation and
warranty was made as of a specific date.
(b) Each Restricted Person is duly authorized to execute and
deliver this Amendment and each other Amendment Document, to the extent a
party thereto, and each Borrower is and will continue to be duly authorized
to borrow and perform its obligations under the Credit Agreement. Each
Restricted Person has duly taken all action necessary to authorize the
execution and delivery of this Amendment and each other Amendment Document,
to the extent a party thereto, and to authorize the performance of their
respective obligations hereunder.
(c) The execution and delivery by each Restricted Person of
this Amendment and each other Amendment Document, to the extent a party
thereto, the performance by each Restricted Person of its respective
obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict
with any provision of any Law or of the organizational documents of any
Restricted Person, or of any material agreement, judgment, license, order
or permit applicable to or binding upon any Restricted Person, or result in
the creation of any Lien upon any assets or properties of any Restricted
Person, except in favor of Administrative Agent or Canadian Agent for the
benefit of Lenders and other Permitted Liens. Except for those which have
been duly obtained, no consent, approval, authorization or order of any
Tribunal or third party is required in connection with the execution and
delivery by any Restricted Person of this Amendment or any other Amendment
Document, or to consummate the transactions contemplated hereby and
thereby.
(d) When duly executed and delivered, each of this Amendment
and each other Amendment Document, and each of the Loan Documents, as
amended hereby and thereby, will be a legal and binding instrument and
agreement of each Restricted Person to the extent a party thereto,
enforceable in accordance with its terms, (subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency and similar laws applicable
to creditors' rights generally).
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents
(including but not limited to each Guaranty), as they may be amended or affected
by this Amendment or any other Amendment Document, are hereby ratified and
confirmed in all respects by each Restricted Person to the extent a party
thereto. Any reference to the Credit Agreement in any Loan
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Document shall be deemed to refer to this Amendment also. The execution,
delivery and effectiveness of this Amendment and the other Amendment Documents
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Administrative Agent, Canadian Agent or any Lender
under the Credit Agreement or any other Loan Document nor constitute a waiver of
any provision of the Credit Agreement or any other Loan Document.
(S) 5.2. Ratification of Security Documents. Restricted Persons,
Administrative Agent, and Lenders each acknowledge and agree that any and all
indebtedness, liabilities or obligations arising under or in connection with the
LC Obligations or the Notes are Obligations and are secured indebtedness under,
are guarantied by, and are secured by, each and every Security Document to which
any Restricted Person is a party. Each Restricted Person hereby re-pledges, re-
grants and re-assigns a security interest in and lien on every asset of the such
Restricted Person described as Collateral in any Security Document and re-
guarantees all Obligations, 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 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, Canadian Agent or any Lender shall be deemed to constitute
representations and warranties by, or agreements and covenants of, such
Restricted Person under this Amendment and under the Credit Agreement.
(S) 5.5. Loan Documents. This Amendment and each other Amendment Document
is a Loan Document, and all provisions in the Credit Agreement pertaining to
Loan Documents apply hereto.
(S) 5.6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY
AND PERFORMANCE.
(S) 5.7. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
US BORROWER: PLAINS MARKETING, L.P.
By: Plains All American Inc., General Partner
By:
-----------------------------------------------
Xxxx Xxxxxx, Exec. Vice President
GUARANTORS: ALL AMERICAN, L.P.
PLAINS ALL AMERICAN PIPELINE, L.P.
By: Plains All American Inc., General Partner
By:
-----------------------------------------------
Xxxx Xxxxxx, Exec. Vice President
CANADIAN REVOLVER
BORROWER: PLAINS MARKETING CANADA, L.P.,
By: PMC (Nova Scotia) Company,
General Partner
By:
-----------------------------------------------
Xxxx Xxxxxx, Exec. Vice Pres.
TERM BORROWER: PMC (NOVA SCOTIA) COMPANY
By:
-----------------------------------------------
Xxxx Xxxxxx, Exec. Vice Pres.
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LENDER PARTIES: FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and Lender
By:
-----------------------------------------------
Xxxxxxxx Xxxxx, Managing Director
FIRST UNION NATIONAL BANK, Lender
By:
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx. Vice Pres.
BANK OF AMERICA, N.A., Lender
By:
-----------------------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO),
Lender
By:
-----------------------------------------------
Name:
Title:
FORTIS CAPITAL CORP., Lender
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, Lender
By:
-----------------------------------------------
Name:
Title:
BANK OF SCOTLAND, Lender
By:
-----------------------------------------------
Name:
Title:
8
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By:
-----------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, Lender
By:
-----------------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ, Lender
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC., Lender
By:
-----------------------------------------------
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., Lender
By:
-----------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., Lender
By:
-----------------------------------------------
Name:
Title:
9
COMERICA BANK-TEXAS, Lender
By:
-----------------------------------------------
Name:
Title:
BNP PARIBAS, Lender
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC., Lender
By:
-----------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
Canadian Administration Agent
By:
-----------------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK, Lender
By:
-----------------------------------------------
Name:
Title:
BANK OF AMERICA CANADA, Lender
By:
-----------------------------------------------
Name:
Title:
00
XXX XXXXXXX (XXXXXX), Lender
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
XXXXXX FINANCIAL CANADA, LTD., Lender
By:
-----------------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
PILGRIM SENIOR INCOME FUND
ML CLO XX PILGRIM AMERICA (CAYMAN)
LTD.
PILGRIM CLO 1999 - 1 LTD.
SEQUILS - PILGRIM I, LTD.
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
ML CLO XII PILGRIM AMERICA (CAYMAN)
LTD., each a Lender
By: ING Pilgrim Investments, LLC,
as its investment manager
By:
-----------------------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST, Lender
By:
-----------------------------------------------
Name:
Title:
00
XXXXXXXX XXX-0000-0, Xxxxxx
By: Flagship Capital Management, Inc.
By:
-----------------------------------------------
Title:
FLAGSHIP CLO II, Lender
By:
-----------------------------------------------
Title:
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
NEMEAN CLO, LTD., each a Lender
By: ING Capital Advisors LLC,
as Investment Manager
By:
-----------------------------------------------
Title:
ALLSTATE LIFE INSURANCE COMPANY
AIMCO CDO SERIES 2000-A, each a Lender
By:
-----------------------------------------------
Name:
By:
-----------------------------------------------
Name:
Its Authorized Signatories
TYLER TRADING, INC., Lender
By:
-----------------------------------------------
Name:
Title:
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR FLOATING RATE HIGH INCOME
FUND
VARIABLE INSURANCE PRODUCTS FUND II:
ASSET MANAGER PORTFOLIO, each a Lender
By:
-----------------------------------------------
Title:
12
ELC (CAYMAN) LTD. 1999-II
APEX (IDM) CDO I, LTD., each a Lender
By:
-----------------------------------------------
Title:
EMERALD ORCHARD LIMITED, Lender
By:
-----------------------------------------------
Name:
Title:
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CONSENT AND AGREEMENT
Each of the undersigned hereby consents to the provisions of this Amendment
and the transactions contemplated herein and hereby (i) acknowledges and agrees
that any and all indebtedness, liabilities or obligations arising under or in
connection with the Notes are Obligations and are secured indebtedness under,
and are secured by, each and every Security Document to which it is a party,
(ii) re-pledges, re-grants and re-assigns a security interest in and lien on all
of its assets described as collateral in any Security Document, (iii) ratifies
and confirms its Guaranty dated May 4, 2001 made by it for the benefit of
Administrative Agent and Lenders, and (iv) expressly acknowledges and agrees
that the undersigned guarantees all indebtedness, liabilities and obligations
arising under or in connection with any and all 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:
-----------------------------------------
Xxxx Xxxxxx, Exec. Vice President
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