AMENDED AND RESTATED CREDIT AGREEMENT
[Letter of Credit and Hedged Inventory Facility]
_______________________________________________________
PLAINS MARKETING, L.P.,
as Borrower,
ALL AMERICAN PIPELINE, L.P.
and
PLAINS ALL AMERICAN PIPELINE, L.P.,
as Guarantors,
FLEET NATIONAL BANK,
as Administrative Agent,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
BANK OF AMERICA, N.A.,
as Documentation Agent,
BANK ONE, NA (MAIN OFFICE CHICAGO) and BNP PARIBAS,
as Senior Managing Agents,
FLEET SECURITIES, INC.,
as Lead Arranger and Book Manager,
and CERTAIN FINANCIAL INSTITUTIONS,
as Lenders
_______________________________________________________
$200,000,000
May 4, 2001
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TABLE OF CONTENTS
Page
ARTICLE I - Definitions and References....................................... 1
Section 1.1. Defined Terms............................................. 1
Section 1.2. Exhibits and Schedules; Additional Definitions............ 28
Section 1.3. Amendment of Defined Instruments.......................... 28
Section 1.4. References and Titles..................................... 29
Section 1.5. Calculations and Determinations........................... 29
ARTICLE II - The Loans....................................................... 29
Section 2.1. Commitments to Lend; Notes................................ 29
Section 2.2. Requests for New Loans.................................... 30
Section 2.3. Continuations and Conversions of Existing Loans........... 31
Section 2.4. Use of Proceeds........................................... 32
Section 2.5. Optional Prepayments of Loans............................. 32
Section 2.6. Mandatory Prepayments..................................... 32
Section 2.7. Letters of Credit......................................... 33
Section 2.8. Requesting Letters of Credit.............................. 34
Section 2.9. Reimbursement and Participations.......................... 34
Section 2.10. No Duty to Inquire........................................ 36
Section 2.11. LC Collateral............................................. 37
Section 2.12. Interest Rates and Fees; Reduction in Commitment.......... 38
Section 2.13. Borrowing Base Reporting.................................. 39
ARTICLE III - Payments to Lenders............................................ 40
Section 3.1. General Procedures........................................ 40
Section 3.2. Capital Reimbursement..................................... 41
Section 3.3. Increased Cost of LIBOR Loans or Letters of Credit........ 41
Section 3.4. Notice; Change of Applicable Lending Office............... 42
Section 3.5. Availability.............................................. 43
Section 3.6. Funding Losses............................................ 43
Section 3.7. Reimbursable Taxes........................................ 43
ARTICLE IV - Conditions Precedent to Credit.................................. 45
Section 4.1. Documents to be Delivered................................. 45
Section 4.2. Additional Conditions Precedent........................... 47
ARTICLE V - Representations and Warranties................................... 48
Section 5.1. No Default................................................ 48
Section 5.2. Organization and Good Standing............................ 49
Section 5.3. Authorization............................................. 49
Section 5.4. No Conflicts or Consents.................................. 49
Section 5.5. Enforceable Obligations................................... 49
Section 5.6. Initial Financial Statements.............................. 50
Page
Section 5.7. Other Obligations and Restrictions....................... 50
Section 5.8. Full Disclosure.......................................... 50
Section 5.9. Litigation............................................... 50
Section 5.10. Labor Disputes and Acts of God........................... 51
Section 5.11. ERISA Plans and Liabilities.............................. 51
Section 5.12. Compliance with Laws..................................... 51
Section 5.13. Environmental Laws....................................... 52
Section 5.14. Names and Places of Business............................. 53
Section 5.15. Borrower's Subsidiaries.................................. 54
Section 5.16. Title to Properties; Licenses............................ 54
Section 5.17. Government Regulation.................................... 54
Section 5.18. Insider.................................................. 54
Section 5.19. Solvency................................................. 54
Section 5.20. Credit Arrangements...................................... 55
ARTICLE VI - Affirmative Covenants.......................................... 55
Section 6.1. Payment and Performance.................................. 55
Section 6.2. Books, Financial Statements and Reports.................. 55
Section 6.3. Other Information and Inspections........................ 58
Section 6.4. Notice of Material Events and Change of Address.......... 59
Section 6.5. Maintenance of Properties................................ 59
Section 6.6. Maintenance of Existence and Qualifications.............. 60
Section 6.7. Payment of Trade Liabilities, Taxes, etc................. 60
Section 6.8. Insurance................................................ 60
Section 6.9. Performance on Borrower's Behalf......................... 60
Section 6.10. Interest................................................. 60
Section 6.11. Compliance with Agreements and Law....................... 61
Section 6.12. Environmental Matters; Environmental Reviews............. 61
Section 6.13. Evidence of Compliance................................... 61
Section 6.14. Agreement to Deliver Security Documents.................. 62
Section 6.15. Perfection and Protection of Security Interests
and Liens................................................ 62
Section 6.16. Bank Accounts; Offset.................................... 62
Section 6.17. Guaranties of Subsidiaries............................... 62
Section 6.18. Compliance with Agreements............................... 63
Section 6.19. Rents.................................................... 63
Section 6.20. Operating Practices...................................... 63
ARTICLE VII - Negative Covenants............................................ 64
Section 7.1. Indebtedness............................................. 64
Section 7.2. Limitation on Liens...................................... 65
Section 7.3. Hedging Contracts........................................ 67
Section 7.4. Limitation on Mergers, Issuances of Securities........... 67
Section 7.5. Limitation on Sales of Property.......................... 68
Section 7.6. Limitation on Dividends and Redemptions.................. 69
Section 7.7. Limitation on Investments and New Businesses............. 69
Section 7.8. Limitation on Credit Extensions.......................... 70
Section 7.9. Transactions with Affiliates............................. 70
Section 7.10. Prohibited Contracts.................................... 70
Section 7.11. Current Ratio............................................ 70
Section 7.12. Debt Coverage Ratio...................................... 71
Section 7.13. Interest Coverage Ratio.................................. 71
Section 7.14. Debt to Capital Ratio.................................... 71
Section 7.15. Open Position; Certain Permitted Financial
Instruments; NYMEX Transactions.......................... 72
Section 7.16. Redelivery of Borrowing Base Report...................... 73
Section 7.17. 3794865 Canada Ltd....................................... 73
ARTICLE VIII - Events of Default and Remedies............................... 74
Section 8.1. Events of Default........................................ 74
Section 8.2. Remedies................................................. 77
ARTICLE IX - Administrative Agent........................................... 77
Section 9.1. Appointment and Authority................................ 77
Section 9.2. Exculpation, Administrative Agent's Reliance, Etc........ 78
Section 9.3. Credit Decisions......................................... 78
Section 9.4. Indemnification.......................................... 78
Section 9.5. Rights as Lender......................................... 79
Section 9.6. Sharing of Set-Offs and Other Payments................... 79
Section 9.7. Investments.............................................. 80
Section 9.8. Benefit of Article IX.................................... 80
Section 9.9. Resignation.............................................. 80
Section 9.10. Other Agents............................................. 81
ARTICLE X - Miscellaneous................................................... 81
Section 10.1. Waivers and Amendments; Acknowledgments................. 81
Section 10.2. Survival of Agreements; Cumulative Nature............... 83
Section 10.3. Notices................................................. 83
Section 10.4. Payment of Expenses; Indemnity.......................... 84
Section 10.5. Joint and Several Liability; Parties in Interest;
Assignments; Replacement Notes.......................... 85
Section 10.6. Confidentiality......................................... 88
Section 10.7. Governing Law; Submission to Process.................... 88
Section 10.8. Waiver of Judgment Interest Act (Alberta)............... 89
Section 10.9. Deemed Reinvestment Not Applicable...................... 89
Section 10.10. Limitation on Interest.................................. 90
Section 10.11. Termination; Limited Survival........................... 90
Section 10.12. Severability............................................ 91
Section 10.13. Counterparts............................................ 91
Section 10.14. Waiver of Jury Trial, Punitive Damages, etc............. 91
Section 10.15. Amendment and Restatement............................... 92
Schedules and Exhibits:
----------------------
Schedule 1 - Lender Schedule
Schedule 2 - Disclosure Schedule
Schedule 3 - Security Schedule
Schedule 4 - Insurance Schedule
Schedule 5 - Borrowing Base Procedures
Exhibit A - Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Forms of Letter of Credit
Exhibit E - Letter of Credit Application and Agreement
Exhibit F - Certificate Accompanying Financial Statements
Exhibit G-1 - Opinion of In-House Counsel for Restricted Persons
Exhibit G-2 - Opinion of Fulbright & Xxxxxxxx L.L.P., Counsel for Restricted
Persons
Exhibit G-3 - Opinion of Xxxxxxx Xxxxx, Canadian Counsel for Restricted Persons
Exhibit H - Borrowing Base Report
Exhibit I - Environmental Compliance Certificate
Exhibit J - Assignment and Acceptance Agreement
Exhibit K - Intercreditor Agreement
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. ("Borrower"), a Delaware limited partnership,
ALL AMERICAN PIPELINE, L.P. ("All American"), a Texas limited partnership,
PLAINS ALL AMERICAN PIPELINE, L.P. ("Plains MLP"), a Delaware limited
partnership, and 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"), FLEET SECURITIES, INC., as lead
arranger and book manager (in such capacity, "Lead Arranger and Book Manager")
and the Lenders referred to below.
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 [Letter of Credit and Hedged
Inventory Facility] dated May 8, 2000 (as amended, restated, or supplemented to
the date hereof, the "Existing Agreement") for the purposes and consideration
therein expressed, pursuant to which one or more such Lenders became obligated
to make and made loans to, and issue letters of credit for the account of,
Borrower as therein provided; and
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent, and
Lenders desire to amend and restate the Existing Agreement for the purposes
described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Existing Agreement, as amended and
restated hereby, in consideration of the loans which may hereafter be made by
Lenders to, and the Letters of Credit that may hereafter be issued by the LC
Issuer for the account of, 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
--------------------------
Section 1.1. Defined Terms. As used in this Agreement, each of the
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following terms has the meaning given to such term in this Section 1.1 or in
the sections and subsections referred to below:
"Acceptable Issuer" means any national or state bank or trust company which
-----------------
is organized under the laws of the United States of America or any state thereof
or any branch licensed to operate under the laws of the United States of America
or any state 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 Xxxxx'x or A-1
by S&P.
1
"Account" shall have the meaning given that term in the UCC.
-------
"Account Debtor" means any Person who is or who may become obligated under,
--------------
with respect to, or on account of, an Account.
"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 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, Syndication Agent or
-----
Documentation Agent.
"Agreement" means this Credit Agreement.
---------
"All American" means All American Pipeline, L.P., a Texas limited
------------
partnership.
"Applicable Lending Office" means, with respect to each Lender, such
-------------------------
Lender's Domestic Lending Office in the case of Base Rate Loans and such
Lender's LIBOR Lending Office in the case of LIBOR Loans.
"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
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Level II greater than or equal to 4.25 to 1.0
but less than 4.50 to 1.0
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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
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Level VI greater than or equal to 2.25 to 1.0
but less than 3.00 to 1.0
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Level VII greater than or equal to 1.75 to 1.0
but less than 2.25 to 1.0
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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.
"Approved Eligible Receivables" means each Eligible Receivable (other than
-----------------------------
Eligible Exchange Balances) (a) from a Person whose Debt Rating is either at
least Baa3 by Xxxxx'x or at least BBB- by S&P; (b) fully and unconditionally
guaranteed as to payment by a Person whose Debt Rating is either at least Baa3
by Xxxxx'x or at least BBB- by S&P; (c) from any other Person Currently Approved
by Majority Lenders; or (d) fully covered by a letter of credit from an
Acceptable Issuer.
"Available Cash" has the meaning given such term in the Partnership
--------------
Agreement.
"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.
3
"Base Rate" means the sum of (a) the Base Rate Margin plus (b) 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 Base Rate resulting from changes in the "prime rate"
shall take place immediately without notice or demand of any kind.
"Base Rate Loan" means a Loan which does not bear interest at the LIBOR
--------------
Rate.
"Base Rate Margin" means (i) from the date hereof through but not including
----------------
the six-month anniversary of the date hereof, the greater of (A) 0.125% per
annum and (B) the percent per annum set forth below based on the Applicable
Leverage Level in effect on such date, and (ii) on and after the six-month
anniversary of the date hereof, the percent per annum set forth below based on
the Applicable Leverage Level in effect on such date.
===================================================
Applicable Leverage Xxxxx Xxxx Xxxx Xxxxxx
---------------------------------------------------
Xxxxx X, Xxxxx XX, Xxxxx XXX 0.250%
or Level IV
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Level V 0.125%
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Level VI, Level VII or 0.000%
Level VIII
===================================================
Changes in the applicable Base Rate Margin will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Borrower and Lenders of changes in the Base
Rate Margin.
"Borrower" means Plains Marketing, L.P., a Delaware limited partnership.
--------
"Borrowing" means a borrowing of new Loans of a single Type pursuant to
---------
Section 2.2 or a Continuation or Conversion of all or a portion of an existing
Loan (whether alone or as a combination with a new Loan) into a single Type
(and, in the case of LIBOR Loans, with the same Interest Period) pursuant to
Section 2.3.
"Borrowing Base" means the remainder of (a) minus (b) below as of the date
--------------
of determination (without duplication):
(a) the sum of the following as of the date of determination :
(i) 100% of Eligible Cash Equivalents; plus
(ii) 90% of Approved Eligible Receivables; plus
4
(iii) the lesser of (A) 85% of Other Eligible Receivables or (B) 1/3
of the sum of the amounts of clauses (a)(i) plus (a)(ii)
[(i.e., (a)(i) plus (a)(ii) must be 75% of (a)(i) plus (a)(ii)
plus (a)(iii)]; plus
(iv) 85% of Eligible Margin Deposits; plus
(v) the lesser of (A) 95% of Hedged Eligible Inventory plus 100% of
Other Eligible Inventory Value or (B) $100,000,000; plus
(vi) 80% of Eligible Exchange Balances; plus
(vii) 100% of all Paid but Unexpired Letters of Credit
MINUS (b) the following as of the date of determination:
(i) 100% of First Purchase Crude Payables; plus
(ii) 100% of Other Priority Claims; plus
(iii) The Estimate Adjustment Amount as provided in Section 2.13;
plus
(iv) The amount of any setoff or contra account to any Eligible
Receivable which could arise from an obligation of Borrower to
sell or purchase Petroleum Products in any future month to the
extent not otherwise reflected as a reduction of Eligible
Receivables, such amount to be determined on an early
termination or xxxx to market basis.
MINUS that portion of such amount attributed to natural gas liquids or propane
exceeding $40,000,000.
"Borrowing Notice" means a written or telephonic request, or a written
----------------
confirmation, made by Borrower which meets the requirements of Section 2.2.
"Business Day" means any day, other than a Saturday, Sunday or day which
------------
shall be in the Commonwealth of Massachusetts a legal holiday or day on which
banking institutions are required or authorized to close. Any Business Day in
any way relating to LIBOR Loans (such as the day on which an Interest Period
begins or ends) must also be a day on which commercial banks settle payments in
London.
"Canadian Cash and Carry Purchases" means purchases of Petroleum Products
---------------------------------
for physical storage at a Plains Terminal or in storage or in transit in
pipelines Currently Approved by Majority Lenders which constitute Canadian
Hedged Eligible Inventory, as such terms are defined in the Revolver Agreement.
"Canadian Dollars" and "C$" means the lawful currency of Canada.
---------------- --
5
"Canadian Letter of Credit" means any Letter of Credit related to a
-------------------------
purchase or exchange of Petroleum Products in Canada by any Canadian Subsidiary.
"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
existing or hereafter formed or 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 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.
"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 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.
"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.
"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 Xxxxx'x or AA- by S&P;
6
(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 Xxxxx'x 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 Xxxxx Xxxxxxxx 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 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 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, Borrower, All American or
any other Restricted Person that is a partnership, (vi) Plains MLP or Borrower
shall cease to be the sole legal and beneficial owner (as defined above) of all
of the limited partnership interests of Borrower and All American, respectively
(including all securities which are convertible into limited partner interests),
(vii) Borrower shall cease to be the direct or indirect owner of all capital
stock of PMC (Nova Scotia) Company or all partnership interests of Plains
Marketing Canada, L.P. (other than the limited partnership 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 (viii) Resources
and its Wholly Owned Subsidiaries taken as a whole shall hold legal and
beneficial ownership of issued and outstanding partnership
7
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.
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"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 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 Fee Rate" means, on any day (i) from the date hereof through
-------------------
but not including the six-month anniversary of the date hereof, 0.5% per annum,
and (ii) on and after the six-month anniversary of the date hereof, the rate per
annum set forth below based on the Applicable Leverage Level on such date.
=======================================================
Applicable Leverage Level Commitment Fee Rate
-------------------------------------------------------
Level I or Level II or Level III 0.500%
or Level IV or Level V
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Level VI or Level VII 0.375%
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Level VIII 0.250%
=======================================================
Changes in the applicable Commitment Fee Rate will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Borrower and Lenders of changes in the
Commitment Fee Rate.
"Commitment Period" means the period from and including the date hereof
-----------------
until April 30, 2004 (or, if earlier, the day on which (i) the obligation of
Lenders to make Loans hereunder and the obligations of LC Issuer to issue
Letters of Credit hereunder have terminated, (ii) the obligation of LC Issuer to
issue Letters of Credit hereunder has terminated, or (iii) the Notes first
become due and payable in full, whichever shall first occur).
"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.
"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.
8
"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 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 or
in respect of 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 xxxx 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.
"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
9
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 Borrower, All American or any
other Restricted Person and by PMC (Nova Scotia) Company in Plains Marketing
Canada, L.P., 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.
"Continuation/Conversion Notice" means a written or telephonic request, or
------------------------------
a written confirmation, made by Borrower which meets the requirements of Section
2.3.
"Continue", "Continuation", and "Continued" shall refer to the continuation
-------- ------------ ---------
pursuant to Section 2.3 hereof of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
--------------------------------------
pursuant to Section 2.3 or Article III of one Type of Loan into another Type of
Loan.
"Crude Oil Marketing Agreement" means that certain Crude Oil Marketing
-----------------------------
Agreement among Resources, Plains Illinois Inc., Xxxxxxx Resources, L.P.,
Xxxxxxxx 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.
"Debt Rating" means with respect to a Person, the rating then in effect by
-----------
a Rating Agency for the long term senior unsecured non-credit enhanced debt of
such Person.
"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.
"Default Rate" means, at the time in question, (i) three and three-fourths
------------
percent (3.75%) per annum plus the LIBOR Rate then in effect for any LIBOR Loan
(up to the end of the applicable Interest Period) or (ii) two percent (2%) per
annum plus the Base Rate for each Base Rate Loan; provided, however, the Default
Rate shall never exceed the Highest Lawful Rate
10
"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 Borrower 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 Borrower has been notified
otherwise by Administrative Agent upon the instruction by Majority Lenders.
"Disclosure Schedule" means Schedule 2 hereto.
-------------------
"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.
"Dollars" and "$" means the lawful currency of the United States of
------- -
America, except where otherwise specified.
"Domestic Lending Office" means, with respect to any Lender, the office of
-----------------------
such Lender specified as its "Domestic Lending Office" in the Lender Schedule
hereto, or such other office as such Lender may from time to time specify to
Borrower and Administrative Agent; with respect to LC Issuer, the office,
branch, or agency through which it issues Letters of Credit; and, with respect
to Administrative Agent, the office, branch, or agency through which it
administers this Agreement.
"Effective Time" shall have the meaning given that term in Section 10.13.
--------------
"Eligible Cash Equivalents" means Cash Equivalents in which Borrower has
-------------------------
lawful and absolute title, which are free from any express or implied at law
Lien, trust or other beneficial interest, in which Administrative Agent holds a
fully perfected first-priority security interest prior to the rights of, and
enforceable as such against, any other Persons pursuant to an account agreement
satisfactory to Administrative Agent and which remain under the sole dominion
and control of Administrative Agent.
"Eligible Exchange Balances" means each Approved Eligible Receivable
--------------------------
(including for this purpose only either the right to receive Petroleum Products
in kind or to receive money) arising from the trading, lending, borrowing or
exchange of Petroleum Products, net of any netted obligations or other offsets
or counterclaims determined in accordance with prices set forth in the
applicable exchange contracts, based on current value at the Market Price, in
which Borrower has lawful and absolute title, which is not subject to any Lien
in favor of any Person (other than Permitted Inventory Liens), and which is
subject to a fully perfected first-priority security interest (subject only to
Permitted Inventory Liens) in favor of Administrative Agent pursuant to the Loan
Documents prior to the rights of, and enforceable as such against, any other
11
Persons minus without duplication the amount of any Permitted Inventory Lien on
any Petroleum Products receivable in kind.
"Eligible Inventory" means inventories of Petroleum Products in which
------------------
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 Inventory Liens), which are subject to a fully perfected first
priority security interest (subject only to Permitted 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 Inventory Lien on any such
inventory. Eligible Inventory shall specifically exclude inventory to be
delivered in the current or next succeeding trading month.
"Eligible Margin Deposit" means net equity value of investments by Borrower
-----------------------
in margin deposit accounts with commodities brokers on nationally recognized
exchanges subject to a perfected security interest in favor of Administrative
Agent and a three-party agreement among Borrower, Administrative Agent and the
depository institution, in form and substance satisfactory to Administrative
Agent.
"Eligible Receivables" means, at the time of any determination thereof (and
--------------------
without duplication), each Account and, with respect to each determination made
on or after the 20th day of each calendar month and prior to the first day of
the next calendar month, each amount which will be, in the good faith estimate
reasonably determined by Borrower, an Account of the Borrower or Plains
Marketing Canada, L.P. with respect to sales and deliveries of Petroleum
Products during such calendar month or deliveries of Petroleum Products during
the next calendar month under firm written purchase and sale agreements, in
either event as to which the following requirements have been fulfilled (or as
to future Accounts, will be fulfilled as of the date of such sales and
deliveries of Petroleum Products), to the reasonable satisfaction of
Administrative Agent:
(i) Borrower or Plains Marketing Canada, L.P. has lawful and
absolute title to such Account;
(ii) such Account is a valid, legally enforceable obligation of an
Account Debtor payable in Dollars or Canadian Dollars, arising from the
sale and delivery of Petroleum Products to such Person in the United States
of America or Canada in the ordinary course of business of Borrower or
Plains Marketing Canada, L.P., to the extent of the volumes of Petroleum
Products delivered to such Person prior to the date of determination;
(iii) there has been excluded from such Account (A) any portion that
is subject to any dispute, rejection, loss, non-conformance, counterclaim
or other claim or defense
12
on the part of any Account Debtor or to any claim on the part of any
Account Debtor denying liability under such Account, and (B) the amount of
any account payable or other liability owed by Borrower or Plains Marketing
Canada, L.P. to the Account Debtor on such Account, whether or not a
specific netting agreement may exist, excluding, however, any portion of
any such account payable or other liability which is at the time in
question covered by a Letter of Credit;
(iv) Borrower or Plains Marketing Canada, L.P. has the full and
unqualified right to assign and grant a security interest in such Account
to Administrative Agent as security for the Obligation;
(v) such Account (A) is evidenced by an invoice rendered to the
Account Debtor, or (B) represents the uninvoiced amount in respect of
volumes of Petroleum Products scheduled to be delivered by Borrower or
Plains Marketing Canada, L.P. in the current or next-following calendar
month, is governed by a purchase and sale agreement, exchange agreement or
other written agreement, and in either event such Account is not evidenced
by any promissory note or other instrument;
(vi) such Account is not subject to any Lien in favor of any Person
and is subject to a fully perfected first priority security interest in
favor of Administrative Agent pursuant to the Loan Documents, prior to the
rights of, and enforceable as such against, any other Person except for a
Lien in respect of First Purchase Crude Payables;
(vii) such Account is due not more than 30 days following the last
day of the calendar month in which the Petroleum Products delivery occurred
and is not more than 30 days past due (except that Accounts of a single
Account Debtor in excess of the Dollar Equivalent of $500,000 which are not
Approved Eligible Receivables shall be excluded from Eligible Receivables
if not paid within three Business Days after the due date);
(viii) such Account is not payable by an Account Debtor with more
than twenty percent (20%) of its Accounts to Borrower or Plains Marketing
Canada, L.P. that are outstanding more than 60 days from the invoice date;
(ix) the Account Debtor in respect of such Account (A) is located,
is conducting significant business or has significant assets in the United
States of America or Canada or is a Person Currently Approved by Majority
Lenders, (B) is not an Affiliate of Borrower or Plains Marketing Canada,
L.P., and (C) is not the subject of any event of the type described in
Section 8.1(i);
(x) the Account Debtor in respect of such Account is not a
governmental authority, domestic or foreign;
(xi) such Account is not the obligation of an Account Debtor that
Administrative Agent or Majority Lenders determine in good faith that there
is a legitimate concern over the timing or collection of such receivable;
and
13
(xii) if such Account is an Account owned by Plains Marketing Canada,
L.P., to the extent the Lien on such Account in favor of Administrative
Agent described in clause (vi) above is valid and non-avoidable under
applicable Law.
"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 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 if 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.
"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 first recital.
------------------
"Facility Usage" means, at the time in question, the aggregate amount of
--------------
outstanding Loans and LC Obligations at such time.
"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
14
such day shall be the average rate quoted to Administrative Agent on such day on
such transactions as determined by Administrative Agent.
"First Purchase Crude Payables" means the unpaid amount of any payable
-----------------------------
obligation related to the purchase of Petroleum Products by Borrower which
Administrative Agent determines will be secured by a statutory Lien, including
but not limited to the statutory Liens, if any, created under the laws of Texas,
New Mexico, Wyoming, Kansas, Oklahoma or any other state or under the Laws of
Canada or any province thereof to the extent such payable obligation is not at
the time in question covered by a Letter of Credit.
"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 Borrower) 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.
"Hedged Eligible Inventory" means (a) Eligible Inventory or (b) Petroleum
-------------------------
Products inventory scheduled to be purchased in the following month, which in
either case has been
15
(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 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 to a
counterparty whose Account would qualify as an Approved Eligible Receivable
or
(ii) otherwise hedged in a manner satisfactory to Majority Lenders. The value
of Hedged 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 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,
16
(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),
(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
17
(iv) the unaudited pro forma Consolidated and consolidating balance sheet of
Plains MLP as of February 28, 2001, after giving effect to the Xxxxxx
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 other "Lender
Parties" under the Revolver Agreement substantially in the form of Exhibit K
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 Revolver 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.
"Interest Period" means, with respect to each particular LIBOR Loan in a
---------------
Borrowing, the period specified in the Borrowing Notice or
Continuation/Conversion Notice applicable thereto, beginning on and including
the date specified in such Borrowing Notice or Continuation/Conversion Notice
(which must be a Business Day), and ending one, two or three months thereafter,
as 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 that would end after the last
day of the Commitment Period.
18
"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 Borrower or Plains Marketing Canada, L.P. to LC Issuer.
"LC Collateral" has the meaning given to such term in Section 2.11(a).
-------------
"LC Issuer" means Fleet National Bank, in its capacity as the issuer of
---------
Letters of Credit hereunder, and its successors in such capacity.
Administrative Agent may, with the consent of Borrower and the Lender in
question, appoint any Lender hereunder as an LC Issuer in place of or in
addition to Fleet National Bank.
"LC Obligations" means, at the time in question, the sum of all Matured LC
--------------
Obligations plus the maximum amounts which LC Issuer might then or thereafter be
called upon to advance under all Letters of Credit then outstanding.
"Lender Parties" means Administrative Agent, LC Issuer, and all Lenders.
--------------
"Lender Schedule" means Schedule 1 hereto.
---------------
"Lenders" means each signatory hereto (other than Borrower and any
-------
Restricted Person that is a party hereto), including Fleet National Bank, in its
capacity as a Lender hereunder rather than as Administrative Agent and LC
Issuer, and the successors and each permitted assign of each such party as
holder of a Note.
"Letter of Credit" means any letter of credit issued by LC Issuer hereunder
----------------
or under the Existing Agreement (i) at the application of Borrower, which shall
be issued in Dollars, or (ii) with respect to Canadian Letters of Credit, at the
application of either Borrower or Plains Marketing Canada, L.P., which may be
issued in either Dollars or Canadian Dollars.
"Letter of Credit Fee Rate" means, on any day (i) from the date hereof
-------------------------
through but not including the six-month anniversary of the date hereof, the
greater of (A) 1.625% per annum and (B) the rate per annum set forth below based
on the Applicable Leverage Level on such date, and
19
(ii) on and after the six-month anniversary of the date hereof, the rate per
annum set forth below based on the Applicable Leverage Level on such date.
==============================================
Applicable Leverage Level LC Fee Rate
----------------------------------------------
Level I, Level II, Level III or 1.750%
Level IV
----------------------------------------------
Level V 1.625%
----------------------------------------------
Level VI 1.500%
----------------------------------------------
Level VII 1.250%
----------------------------------------------
Level VIII 1.000%
==============================================
Changes in the applicable 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 Borrower and Lenders of
changes in the Letter of Credit Fee Rate.
"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 Lending Office" means, with respect to any Lender, the office of
--------------------
such Lender specified as its "LIBOR Lending Office" on the Lender Schedule
hereto (or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time specify to
Borrower and Administrative Agent.
"LIBOR Loan" means a Loan that bears interest at a rate based upon the
----------
LIBOR Rate.
"LIBOR Rate" means, as applicable to any 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 1/32 of 1%) as determined on the
basis of offered rates for deposits in U.S. 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 LIBOR Loan; provided, however, if the rate
described above does not appear on the Telerate system on any applicable
interest determination date, the 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 "LIBO" (or such
other page as may replace the LIBO 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 LIBO 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 LIBOR Rate for that date will be determined on
the basis of the offered rates for
20
deposits in U.S. 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 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 U.S. 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 U.S. 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 LIBOR Loan. In the event that
Administrative Agent is unable to obtain any such quotation as provided above,
it will be deemed that the LIBOR Rate pursuant to such 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 LIBOR Rate shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage. "Reserve Percentage" means the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal, special, emergency and other reserves) which is imposed on member
banks of the Federal Reserve System against "Euro-currency Liabilities" as
defined in Regulation D. Without limiting the effect of the foregoing, the
Reserve Percentage shall reflect any other reserves required to be maintained by
such member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the LIBOR Rate is to be determined, or (b) any
category of extensions of credit or other assets which include LIBOR Loans. The
LIBOR Rate for any LIBOR Loan shall change whenever the Reserve Percentage
changes.
"LIBOR Rate Margin" means (i) from the date hereof through but not
-----------------
including the six-month anniversary of the date hereof, the greater of (A)
1.625% per annum and (B) the percent per annum set forth below based on the
Applicable Leverage Level in effect on such date, and (ii) on and after the six-
month anniversary of the date hereof, the percent per annum set forth below
based on the Applicable Leverage Level in effect on such date.
=====================================================
Applicable Leverage Level LIBOR Rate Margin
-----------------------------------------------------
Level I, Level II, Level III or 1.750%
Level IV
-----------------------------------------------------
Level V 1.625%
-----------------------------------------------------
Level VI 1.500%
-----------------------------------------------------
Level VII 1.250%
-----------------------------------------------------
Level VIII 1.000%
=====================================================
21
Changes in the applicable LIBOR Rate Margin will occur automatically without
prior notice as changes in the Applicable Leverage Level occur. Administrative
Agent will give notice promptly to Borrower and Lenders of changes in the LIBOR
Rate Margin.
"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.
"Loans" has the meaning given to such term in Section 2.1.
-----
"Loan Documents" means this Agreement, the Notes, the Security Documents,
--------------
the Letters of Credit, the LC Applications, 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).
"Majority Lenders" means Lenders whose aggregate Percentage Shares equal or
----------------
exceed sixty-six and two-thirds percent (66 2/3%).
"Market Price" means on each day a spot price for the inventory of
------------
Petroleum Products being valued, determined by published prices and methodology
approved by Administrative Agent from time to time, based on an index gravity
and grade of Petroleum Products at a delivery point reflecting as nearly as
practical the actual gravity, grade, and location of the Petroleum Products
being valued, adjusted to reflect any differences in gravity and grade between
the index Petroleum Products and the actual inventory and to reflect
transportation costs or other appropriate location price differential from the
actual location to the index location.
"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) Borrower's ability to timely pay the Obligations, or
(d) the enforceability of the material terms of any Loan Document.
"Material Market Open Position Loss" means a cumulative amount of net
----------------------------------
losses resulting from Open Positions (other than Open Positions permitted under
Section 7.15) of all Restricted
22
Persons on a xxxx to market basis during any period of 12 consecutive months in
excess of the Dollar Equivalent of $5,000,000, calculated without inclusion of
that portion of the loss arising from unauthorized trading activity by Borrower
during the period of January 1, 1999 to November 20, 1999 incurred during such
12-month period.
"Matured LC Obligations" means all amounts paid by LC Issuer on drafts or
----------------------
demands for payment drawn or made under or purported to be under any Letter of
Credit and all other amounts due and owing to LC Issuer under any LC Application
for any Letter of Credit, to the extent the same have not been repaid to LC
Issuer (with the proceeds of Loans or otherwise).
"Maximum Drawing Amount" means at the time in question the sum of the
----------------------
maximum amounts which LC Issuer might then or thereafter be called upon to
advance under all Letters of Credit then outstanding.
"Maximum Facility Amount" means the amount of $200,000,000, as such amount
-----------------------
may be reduced by Borrower from time to time as provided in Section 2.12.
"Maximum Loan Amount" means $100,000,000.
-------------------
"Moody's" means Xxxxx'x Investor Service, Inc., or its successor.
-------
"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 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.
"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.
"Note" has the meaning given to such term in Section 2.1.
----
"NYMEX" means the New York Mercantile Exchange.
-----
"Obligations" means all 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 LC Obligations. "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
23
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, 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.
"Other Eligible Inventory Value" means the following amount of Eligible
------------------------------
Inventory, other than Hedged Eligible Inventory: (a) if the WTI Price is less
than or equal to $30 per barrel, 80% of the product of the volume of such crude
oil times the Market Price, or (b) if the WTI Price is greater than $30 per
barrel the greater of (i) 70% of the product of the volume of such crude oil
times the Market Price or (ii) 80% of the product of the volume of such crude
oil times $30 per barrel; minus, in each case, all storage, transportation and
other applicable costs. As used herein "WTI Price" means on each day the
---------
Xxxxx'x Average Spot Price for West Texas intermediate crude oil (Cushing,
Oklahoma).
"Other Eligible Receivable" means any Eligible Receivable which is not an
-------------------------
Approved Eligible Receivable nor an Eligible Exchange Balance. The portions of
the aggregate of the Other Eligible Receivables owed by any obligor and its
Affiliates exceeding five percent (5%) of the sum of (i) Approved Eligible
Receivables plus (ii) Other Eligible Receivables, shall not be included without
the prior written approval of the Majority Lenders.
"Other Priority Claims" means any account payable, obligation or liability
---------------------
which Administrative Agent has determined has or will have a Lien upon or claim
against any Cash Equivalent, account or inventory of Borrower or Plains
Marketing Canada, L.P. senior or equal in priority to the security interests in
favor of Administrative Agent for the benefit of Lenders, in each case to the
extent such Cash Equivalent, account or inventory of Borrower or Plains
Marketing Canada, L.P. is otherwise included in the determination of the
Borrowing Base and the included portion thereof has not already been reduced by
such Lien or claim.
"Paid but Unexpired Letters of Credit" means, on any day, the maximum
------------------------------------
drawing amount of Letters of Credit on such day where no underlying obligation
exists on such day, or if the amount of the Letter of Credit exceeds the
underlying obligation on such day, the amount of such excess. As used herein,
"underlying obligation" includes without limitation, all existing and future
obligations to the beneficiary of such Letter of Credit in respect of Petroleum
Products purchased or received on or prior to such day or in respect of
Petroleum Products Borrower or Plains Marketing Canada, L.P. is then obligated
to purchase or receive or has then nominated to purchase or receive.
"Partnership Agreement" means the Second Amended and Restated Agreement of
---------------------
Limited Partnership of Plains MLP dated November 23, 1998.
24
"Percentage Share" means, with respect to any Lender (a) when used in
----------------
Sections 2.1, 2.2 or 2.12, in any Borrowing Notice or when no Loans are
outstanding hereunder, the percentage set forth opposite such Lender's name on
the Lender Schedule hereto, and (b) when used otherwise, the percentage obtained
by dividing (i) the sum of the unpaid principal balance of such Lender's Loans
at the time in question plus the Matured LC Obligations which such Lender has
funded pursuant to Section 2.9(c) plus the portion of the Maximum Drawing Amount
which such Lender might be obligated to fund under Section 2.9(c), by (ii) the
sum of the aggregate unpaid principal balance of all Loans at such time plus the
aggregate amount of LC Obligations outstanding at such time.
"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 Xxxxxx
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; and
(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.
"Permitted 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(ii)(b) (so long as such Lien is inchoate) or Section
7.2(ii)(d).
"Permitted Investments" means:
---------------------
(a) Cash Equivalents,
(b) Investments described in the Disclosure Schedule,
(c) Investments by any Canadian Subsidiary in Borrower or any other
Restricted Person that is a Guarantor,
(d) Investments by Plains MLP or any of its Subsidiaries (other than any
Canadian Subsidiaries) in:
(I) Borrower or any Wholly Owned Subsidiary of Plains MLP which is a
Guarantor, other than any Canadian Subsidiary or
(II) any Canadian Subsidiary with respect to the consummation of the
Xxxxxx Acquisition and the CanPet Acquisition,, provided that (A) the
--------
aggregate amount of such
25
Investments in Canadian Subsidiaries shall not exceed (y) $57,000,000 with
respect to the Xxxxxx Acquisition, the proceeds of which shall be used to
consummate the Xxxxxx Acquisition, to fund Canadian Cash and Carry
Purchases and for working capital purposes with respect to the Xxxxxx
Acquisition and (z) $84,000,000 (including any Investment described in
clause (y) above), such Investment in excess of the Investment 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) Borrower or Plains Marketing Canada, L.P. consisting solely of
units issued by Plains MLP to be used by Borrower or Plains Marketing
Canada, L.P. 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 (as such terms are defined in the Revolver Agreement),
(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.
26
"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.
"Plains Terminal" means any storage terminal, tankage or facility owned by
---------------
any Restricted Person.
"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 Borrower, All American, and each Subsidiary of
Borrower and/or All American.
"Revolver Agreement" means that certain Amended and Restated Credit
------------------
Agreement [Revolving Credit Facility] of even date herewith among Borrower, All
American and Plains MLP, as guarantors, and the agents and lenders named
therein, providing for a $500,000,000 revolving credit facility for Borrower, a
$100,000,000 term loan to PMC (Nova Scotia) Company and a $30,000,000 revolving
credit facility for Plains Marketing Canada, L.P.
"Revolver Availability" means for any day, the unutilized portion available
---------------------
on such day of the "Total Revolver Commitment" (as defined in Section 7.11 of
the Revolver Agreement) for revolving credit loans to Borrower pursuant to the
Revolver Agreement.
"S&P" means Standard & Poor's Ratings Group (a division of McGraw Hill,
---
Inc.) or its successor.
"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.
-----------------
"Subsidiary" means, with respect to any Person, any corporation,
----------
association, partnership, limited liability company, joint venture, or other
business or corporate entity, enterprise or
27
organization which is directly or indirectly (through one or more
intermediaries) controlled or owned more than fifty percent by such Person.
"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, 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 either Base Rate Loans or LIBOR Loans.
"UCC" means the Uniform Commercial Code as in effect in the State of New
---
York.
"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.
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 particular agreement, instrument or document also
refer to and include all renewals, extensions, modifications, amendments and
restatements of such agreement, instrument or document,
28
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 "Revolver 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 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 II - The Loans and Letters of Credit
-------------------------------
Section 2.1. Commitments to Lend; Notes. Subject to the terms and
--------------------------
conditions hereof, each Lender agrees to make loans to Borrower (herein called
such Lender's "Loans") upon Borrower's request from time to time during the
Commitment Period, provided that (a) subject to Sections 3.3, 3.4 and 3.6, all
Lenders are requested to make 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 loans, the aggregate principal amount of outstanding Loans will
not exceed the Maximum Loan Amount, and (c) after giving effect to such Loans,
the Dollar Equivalent of the Facility Usage does not exceed the lesser of (i)
the Maximum Facility Amount and (ii) the Borrowing Base determined as of the
date on which the requested Loans are to be made. The aggregate amount of all
Loans in any Borrowing must be equal to $2,000,000 or any higher integral
multiple of $250,000. Borrower may have no more than five Borrowings of LIBOR
29
Loans outstanding at any time. The obligation of Borrower to repay to each
Lender the aggregate amount of all Loans made by such Lender, together with
interest accruing in connection therewith, shall be evidenced by a single
promissory note (herein called such Lender's "Note") made by Borrower payable to
the order of such Lender in the form of Exhibit A with appropriate insertions.
The amount of principal owing on any Lender's Note at any given time shall be
the aggregate amount of all Loans theretofore made by such Lender minus all
payments of principal theretofore received by such Lender on such Note. Interest
on each Note shall accrue and be due and payable as provided herein and therein.
Each Note shall be due and payable as provided herein and therein, and shall be
due and payable in full on the last day of the Commitment Period. Subject to the
terms and conditions of this Agreement, Borrower may borrow, repay, and reborrow
hereunder.
Section 2.2. Requests for New Loans. Borrower must give to
----------------------
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of any requested Borrowing of Loans to be funded by Lenders. Each such
notice constitutes a "Borrowing Notice" hereunder and must:
(a) specify (i) the aggregate amount of any such Borrowing of Base
Rate Loans and the date on which such Base Rate Loans are to be advanced,
or (ii) the aggregate amount of any such Borrowing of LIBOR Loans, the date
on which such 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 Base Rate
Loans are to be made, or (ii) the third Business Day preceding the day on
which any such LIBOR Loans are to be made.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by 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 Lender prompt notice of the terms
thereof. If all conditions precedent to such new Loans have been met, each
Lender will on the date requested promptly remit to Administrative Agent at
Administrative Agent's office in Boston, Massachusetts the amount of such
Lender's Loan in immediately available funds, and upon receipt of such funds,
unless to its actual knowledge any conditions precedent to such Loans have been
neither met nor waived as provided herein, Administrative Agent shall promptly
make such Loans available to Borrower. Unless Administrative Agent shall have
received prompt notice from a Lender that such Lender will not make available to
Administrative Agent such Lender's new Loan, Administrative Agent may in its
discretion assume that such Lender has made such Loan available to
Administrative Agent in accordance with this section and Administrative Agent
may if it chooses, in reliance upon such assumption, make such Loan available to
Borrower. If and to the extent such Lender shall not so make its new Loan
available to Administrative Agent, such Lender and Borrower severally agree to
pay or repay to
30
Administrative Agent within three days after demand the amount of such Loan
together with interest thereon, for each day from the date such amount was made
available to Borrower until the date such amount is paid or repaid to
Administrative Agent, with interest at (i) the Federal Funds Rate, if such
Lender is making such payment and (ii) the interest rate applicable at the time
to the other new Loans made on such date, if Borrower is making such repayment.
If neither such Lender nor Borrower pays or repays to Administrative Agent such
amount within such three-day period, Administrative Agent shall be entitled to
recover from 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 Borrower. The failure of any Lender to
make any new Loan to be made by it hereunder shall not relieve any other Lender
of its obligation hereunder, if any, to make its new Loan, but no Lender shall
be responsible for the failure of any other Lender to make any new Loan to be
made by such other Lender.
Section 2.3. Continuations and Conversions of Existing Loans. Borrower
-----------------------------------------------
may make the following elections with respect to Loans already outstanding: to
Convert, in whole or in part, Base Rate Loans to LIBOR Loans, to Convert, in
whole or in part, LIBOR Loans to Base Rate Loans on the last day of the Interest
Period applicable thereto, and to Continue, in whole or in part, 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,
Borrower may combine existing Loans made pursuant to separate Borrowings into
one new Borrowing or divide existing Loans made pursuant to one Borrowing into
separate new Borrowings, provided that Borrower may have no more than five
Borrowings of LIBOR Loans outstanding at any time. To make any such election,
Borrower must give to Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of any such Conversion or Continuation of
existing 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 Loans which are to be Continued or
Converted;
(b) specify (i) the aggregate amount of any Borrowing of Base Rate
Loans into which such existing 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 LIBOR Loans into which such existing
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 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 Base Rate Loans is to occur, or (ii) the third Business
Day preceding the day on which any such Continuation or Conversion to 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, duly
completed. Each such
31
telephonic request shall be deemed a representation, warranty, acknowledgment
and agreement by 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 Lender prompt notice of the terms
thereof. Each Continuation/Conversion Notice shall be irrevocable and binding on
Borrower. During the continuance of any Default, Borrower may not make any
election to Convert existing Loans into LIBOR Loans or Continue existing Loans
as 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) Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing LIBOR
Loans at least three days prior to the end of the Interest Period applicable
thereto, such LIBOR Loans, to the extent not prepaid at the end of such Interest
Period, shall automatically be Converted into Base Rate Loans at the end of such
Interest Period. No new funds shall be repaid by Borrower or advanced by any
Lender in connection with any Continuation or Conversion of existing 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 2.4. Use of Proceeds. Borrower shall use the proceeds of all
---------------
Loans to finance Cash and Carry Purchases, as margin deposits not to exceed
$50,000,000 in the aggregate at any time outstanding with respect to Hedging
Contracts as permitted pursuant to Section 7.2(e) and to refinance Matured LC
Obligations. Borrower and, with respect to Canadian Letters of Credit, Borrower
or Plains Marketing Canada, L.P., as the case may be, shall use all Letters of
Credit solely for the purposes specified in Section 2.7(d). In no event shall
any Loan or any Letter of Credit be used (i) to fund distributions by Plains
MLP, (ii) directly or indirectly by any Person for personal, family, household
or agricultural purposes, (iii) 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 (iv) to extend credit to others directly or
indirectly for the purpose of purchasing or carrying any such margin stock.
Borrower represents and warrants that Borrower is not engaged principally, or as
one of Borrower's important activities, in the business of extending credit to
others for the purpose of purchasing or carrying such margin stock.
Section 2.5. Optional Prepayments of Loans. Borrower may, upon five
-----------------------------
Business Days' notice to Administrative Agent (and Administrative Agent will
promptly give notice to the other Lenders), from time to time and without
premium or penalty prepay the Loans, in whole or in part, so long as the
aggregate amounts of all partial prepayments of principal on the Loans equals
$2,000,000 or any higher integral multiple of $250,000. 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.
Section 2.6. Mandatory Prepayments. If at any time the Dollar Equivalent
---------------------
of the Facility Usage exceeds the Borrowing Base (whether due to a reduction in
the Borrowing Base in accordance with this Agreement, or otherwise), Borrower
shall immediately upon demand prepay
32
the principal of the Loans in an amount at least equal to such excess. If at any
time the outstanding principal balance of the Loans exceed the sum of (i) Hedged
Eligible Inventory plus (ii) the outstanding amount of Accounts resulting from
the sale of such Hedged Eligible Inventory (without duplication), Borrower shall
within one Business Day prepay the principal of the 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.
Section 2.7. Letters of Credit. Subject to the terms and conditions
-----------------
hereof, Borrower and, with respect to Canadian Letters of Credit, Borrower or
Plains Marketing Canada, L.P., may during the Commitment Period request LC
Issuer to issue, amend, or extend the expiration date of, one or more Letters of
Credit, provided that:
(a) after taking such Letter of Credit into account, the Dollar
Equivalent of the Facility Usage does not exceed the lesser of (i) the
Maximum Facility Amount at such time or (ii) the Borrowing Base at such
time;
(b) the expiration date of such Letter of Credit is prior to the
earlier of (i) (A) 70 days, (B) 180 days, if the beneficiary thereof is
Exxon Mobil Company, or (C) one year, if the beneficiary thereof is only
the United States Mineral Management Service or other federal or state
governmental agency regulating Petroleum Products purchases, after the date
of issuance of such Letter of Credit, and (ii) 30 days prior to the end of
the Commitment Period;
(c) the issuance of such Letter of Credit will be in compliance with
all applicable governmental restrictions, policies, and guidelines and will
not subject LC Issuer to any cost which is not reimbursable under Article
III;
(d) such Letter of Credit is related to the purchase or exchange by
Borrower or, with respect to any purchase or exchange in Canada, by
Borrower or by Plains Marketing Canada, L.P., of Petroleum Products and is
in the Form of Exhibit D hereto or such other form and terms as shall be
acceptable to LC Issuer in its sole and absolute discretion and Currently
Approved by Majority Lenders, and, if the beneficiary thereof is the United
States Mineral Management Service, after taking such Letter of Credit into
account, the aggregate amount of LC Obligations in respect to all Letters
of Credit naming the United States Mineral Management Service as
beneficiary does not exceed $5,000,000;
(e) if such Letter of Credit is a Canadian Letter of Credit, after
taking such Canadian Letter of Credit into account, the Dollar Equivalent
of the aggregate amount of LC Obligations at such time relating to Canadian
Letters of Credit does not exceed (1) $50,000,000 prior to the Xxxxxx
Acquisition Closing Date, (2) $80,000,000 during the four-month period
commencing with the Xxxxxx Acquisition Closing Date, and (3) $50,000,000
thereafter; and
33
(f) all other conditions in this Agreement to the issuance of such
Letter of Credit have been satisfied.
LC Issuer will honor any such request if the foregoing conditions (a) through
(f) (in the following Section 2.8 called the "LC Conditions") have been met as
-------------
of the date of issuance, amendment, or extension of such Letter of Credit. The
outstanding letters of credit issued by LC Issuer under the Existing Agreement
shall be deemed to be Letters of Credit issued hereunder; Borrower hereby
represents and warrants that the LC Conditions have been met as of the date
hereof with respect to each such Letter of Credit. Borrower or Plains Marketing
Canada, L.P., as the case may be, may request that any Canadian Letter of Credit
be issued in Dollars or in Canadian Dollars, and, subject to the terms and
conditions hereof, LC Issuer will honor such request.
Section 2.8. Requesting Letters of Credit. Borrower or Plains Marketing
----------------------------
Canada, L.P., as the case may be, must make written application for any Letter
of Credit at least one Business Day before the date on which Borrower or Plains
Marketing Canada, L.P., as the case may be, desires for LC Issuer to issue such
Letter of Credit. By making any such written application, unless otherwise
expressly stated therein, Borrower or Plains Marketing Canada, L.P., as the case
may be, shall be deemed to have represented and warranted that the LC Conditions
described in Section 2.7 will be met as of the date of issuance of such Letter
of Credit. Each such written application for a Letter of Credit must be made in
writing in the form and substance of Exhibit E, the terms and provisions of
which are hereby incorporated herein by reference (or in such other form as may
mutually be agreed upon by LC Issuer and Borrower or Plains Marketing Canada,
L.P., as the case may be). If all LC Conditions for a Letter of Credit have
been met as described in Section 2.7 on any Business Day before 11:00 a.m,
Boston, Massachusetts time, LC Issuer will issue such Letter of Credit on the
same Business Day at LC Issuer's office in Boston, Massachusetts. If the LC
Conditions are met as described in Section 2.7 on any Business Day on or after
11:00 a.m, Boston, Massachusetts time, LC Issuer will issue such Letter of
Credit on the next succeeding Business Day at LC Issuer's office in Boston,
Massachusetts. If any provisions of any LC Application conflict with any
provisions of this Agreement, the provisions of this Agreement shall govern and
control.
Section 2.9. Reimbursement and Participations.
--------------------------------
(a) Reimbursement. Each Matured LC Obligation shall constitute a loan by
-------------
LC Issuer to Borrower or Plains Marketing Canada, L.P., as the case may be.
Borrower promises to pay to LC Issuer, or to LC Issuer's order, on demand, the
full amount of each Matured LC Obligation (which, in the case of any Letter of
Credit issued in Canadian Dollars, shall as demanded by LC Issuer be payable in
Canadian Dollars or in an amount equal to the equivalent in Dollars of such
amount of Canadian Dollars determined by LC Issuer in accordance with its normal
procedures and after deducting any premium and costs of exchange), including
without limitation all Matured LC Obligations with respect to Canadian Letters
of Credit issued at the request of Plains Marketing Canada, L.P., together with
interest thereon (i) at the Base Rate to and including the second Business Day
after the Matured LC Obligation is incurred and (ii) at the Default Rate on each
day thereafter. In addition, and notwithstanding the foregoing, Plains
Marketing Canada,
L.P., pursuant to each LC Application executed by it, shall be obligated to pay
to LC Issuer, or to LC Issuer's order, on demand, the full amount of each
Matured LC Obligation with respect to Canadian Letters of Credit requested by it
(which, in the case of any Letter of Credit issued in Canadian Dollars, shall as
demanded by LC Issuer be payable in Canadian Dollars or in an amount equal to
the equivalent in Dollars of such amount of Canadian Dollars determined by LC
Issuer in accordance with its normal procedures and after deducting any premium
and costs of exchange), together with interest thereon as set forth in the
foregoing sentence (such obligation and Borrower's obligation set forth in the
foregoing sentence with respect to such Canadian Letters of Credit to be joint
and several). Any such reimbursement made by Plains Marketing Canada, L.P.
shall, pursuant to Section 3.7(b) hereof, include all such additional amounts as
are needed to cause the amount received by LC Issuer, after any deduction or
withholding as may be required pursuant to the Income Tax Act (Canada) or other
applicable Canadian Laws, to equal the amount which would have been receivable
in the absence of such deduction or withholding.
(b) Letter of Credit Advances. If the beneficiary of any Letter of Credit
-------------------------
makes a draft or other demand for payment thereunder then Borrower may, during
the interval between the making thereof and the honoring thereof by LC Issuer,
request Lenders to make Loans to Borrower in the amount of such draft or demand,
which Loans shall be made concurrently with LC Issuer's payment of such draft or
demand and shall be immediately used by LC Issuer to repay the amount of the
resulting Matured LC Obligation. Such a request by Borrower shall be made in
compliance with all of the provisions hereof, provided that for the purposes of
the first sentence of Section 2.1, the amount of such Loans shall be considered,
but the amount of the Matured LC Obligation to be concurrently paid by such
Loans shall not be considered.
(c) Participation by Lenders. LC Issuer irrevocably agrees to grant and
------------------------
hereby grants to each Lender, and -- to induce LC Issuer to issue Letters of
Credit hereunder -- each Lender irrevocably agrees to accept and purchase and
hereby accepts and purchases from LC Issuer, on the terms and conditions
hereinafter stated and for such Lender's own account and risk an undivided
interest equal to such Lender's Percentage Share of LC Issuer's obligations and
rights under each Letter of Credit issued hereunder and the amount of each
Matured LC Obligation paid by LC Issuer thereunder. Each Lender unconditionally
and irrevocably agrees with LC Issuer that, if a Matured LC Obligation is paid
under any Letter of Credit for which LC Issuer is not reimbursed in full by
Borrower or, with respect to Canadian Letters of Credit requested by Plains
Marketing Canada, L.P., by either Borrower or Plains Marketing Canada, L.P. in
accordance with the terms of this Agreement and the related LC Application
(including any reimbursement by means of concurrent Loans or by the application
of LC Collateral), such Lender shall (in all circumstances and without set-off
or counterclaim) pay to LC Issuer on demand, in immediately available funds at
LC Issuer's address for notices hereunder, such Lender's Percentage Share of
such Matured LC Obligation (or any portion thereof which has not been reimbursed
by Borrower or, with respect to Canadian Letters of Credit requested by Plains
Marketing Canada, L.P., by either Borrower or Plains Marketing Canada, L.P.).
Each Lender's obligation to pay LC Issuer pursuant to the terms of this
subsection is irrevocable and unconditional. If any amount required to be paid
by any Lender to LC Issuer pursuant to this subsection is paid by such Lender to
LC Issuer within three Business Days after the date such payment is due, LC
Issuer shall in addition to such amount be entitled to recover from such Lender,
on demand, interest thereon calculated
35
from such due date at the Federal Funds Rate. If any amount required to be paid
by any Lender to LC Issuer pursuant to this subsection is not paid by such
Lender to LC Issuer within three Business Days after the date such payment is
due, LC Issuer shall in addition to such amount be entitled to recover from such
Lender, on demand, interest thereon calculated from such due date at the Base
Rate.
(d) Distributions to Participants. Whenever LC Issuer has in accordance
-----------------------------
with this section received from any Lender payment of such Lender's Percentage
Share of any Matured LC Obligation, if LC Issuer thereafter receives any payment
of such Matured LC Obligation or any payment of interest thereon (whether
directly from Borrower or, with respect to Canadian Letters of Credit requested
by Plains Marketing Canada, L.P., by either Borrower or Plains Marketing Canada,
L.P. or by application of LC Collateral or otherwise, and excluding only
interest for any period prior to LC Issuer's demand that such Lender make such
payment of its Percentage Share), LC Issuer will distribute to such Lender its
Percentage Share of the amounts so received by LC Issuer; provided, however,
-------- -------
that if any such payment received by LC Issuer must thereafter be returned by LC
Issuer, such Lender shall return to LC Issuer the portion thereof which 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 LC Issuer to Borrower or any
Lender from time to time, shall be conclusive, absent manifest error, as to the
amounts thereof.
Section 2.10. No Duty to Inquire.
------------------
(a) Drafts and Demands. LC Issuer is authorized and instructed to accept
------------------
and pay drafts and demands for payment under any 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. 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 Letter of Credit, and payment by LC Issuer to any such
beneficiary when requested by any such purported officer, representative or
agent is hereby authorized and approved. 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 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 Letter of Credit is made at the request of Borrower, or if the
amount of any Letter of Credit is increased at the request of Borrower, this
36
Agreement shall be binding upon all Restricted Persons with respect to such
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
LC Issuer, LC Issuer's correspondents, or any Lender Party in accordance with
such extension, increase or other modification.
(c) Transferees of Letters of Credit. If any Letter of Credit provides
--------------------------------
that it is transferable, LC Issuer shall have no duty to determine the proper
identity of anyone appearing as transferee of such Letter of Credit, nor shall
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
LC Issuer to any purported transferee or transferees as determined by LC Issuer
is hereby authorized and approved, and 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, 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 2.11. LC Collateral.
-------------
(a) LC Obligations in Excess of Borrowing Base. If, after the making of
------------------------------------------
all mandatory prepayments required under Section 2.6, the Dollar Equivalent of
outstanding LC Obligations will exceed the Borrowing Base, then in addition to
prepayment of the entire principal balance of the Loans Borrower will
immediately pay to LC Issuer an amount equal to such excess. LC Issuer will
hold such amount as collateral security for the remaining LC Obligations (all
such amounts held as collateral security for LC Obligations being herein
collectively called "LC Collateral") and the other Obligations, and such
-------------
collateral may be applied from time to time to pay Matured LC Obligations or any
other Obligations which are then due and payable. Neither this subsection nor
the following subsection shall, however, limit or impair any rights which LC
Issuer may have under any other document or agreement relating to any Letter of
Credit, LC Collateral or LC Obligation, including any LC Application, or any
rights which any Lender Party may have to otherwise apply any payments by
Borrower and any LC Collateral under Section 3.1.
(b) Acceleration of LC Obligations. If the Obligations or any part
------------------------------
thereof become immediately due and payable pursuant to Section 8.1 then, unless
all Lenders otherwise specifically elect to the contrary (which election may
thereafter be retracted by all Lenders at any time), all LC Obligations shall
become immediately due and payable without regard to whether or not actual
drawings or payments on the Letters of Credit have occurred, and Borrower shall
be obligated to pay to LC Issuer immediately an amount equal to the aggregate
Dollar Equivalent of LC Obligations which are then outstanding to be held as LC
Collateral.
37
(c) Investment of LC Collateral. Pending application thereof, all LC
---------------------------
Collateral shall be invested by LC Issuer in such Cash Equivalents as LC Issuer
may choose in its sole discretion. All interest on (and other proceeds of) such
Investments shall be reinvested or applied to Matured LC Obligations or other
Obligations which are due and payable. When all Obligations have been satisfied
in full, including all LC Obligations, all Letters of Credit have expired or
been terminated, and all of Borrower's reimbursement obligations in connection
therewith have been satisfied in full, LC Issuer shall release any remaining LC
Collateral. Borrower hereby assigns and grants to LC Issuer for the benefit of
Lenders a continuing security interest in all LC Collateral paid by it to LC
Issuer, all Investments purchased with such LC Collateral, and all proceeds
thereof to secure its Matured LC Obligations and its Obligations under this
Agreement, each Note, and the other Loan Documents, and Borrower agrees that
such LC Collateral, Investments and proceeds shall be subject to all of the
terms and conditions of the Security Documents. Borrower further agrees that LC
Issuer shall have all of the rights and remedies of a secured party under the
UCC 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 LC Collateral. When Borrower is required to provide LC
------------------------
Collateral for any reason and fails to do so on the day when required, LC Issuer
or Administrative Agent may without prior notice to Borrower or any other
Restricted Person provide such LC Collateral (whether by application of proceeds
of other Collateral, by transfers from other accounts maintained with LC Issuer,
or otherwise) using any available funds of Borrower or any other Person also
liable to make such payments, and LC Issuer or Administrative Agent will give
notice thereof to Borrower promptly after such application or transfer. Any
such amounts which are required to be provided as 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 LC Issuer is hereby
authorized to exercise its respective rights under each Security Document to
obtain such amounts.
Section 2.12. Interest Rates and Fees; Reduction in Commitment.
------------------------------------------------
(a) Interest Rates. Unless the Default Rate shall apply, (i) each Base
--------------
Rate Loan shall bear interest on each day outstanding at the Base Rate plus the
Base Rate Margin in effect on such day and (ii) each LIBOR Loan shall bear
interest on each day during the related Interest Period at the related LIBOR
Rate plus the LIBOR Rate Margin in effect on such day. During a Default Rate
Period, all 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 Borrower, based upon Section 8.1(i)(i), (i)(ii) or (i)(iii)
exists and the 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 Base Rate, the Base Rate Margin, the LIBOR Rate or the LIBOR Rate
Margin changes. In no event shall the interest rate on any Loan exceed the
Highest Lawful Rate.
(b) Commitment Fees. In consideration of each Lender's commitment to make
---------------
Loans, Borrower will pay to Administrative Agent for the account of each Lender
a commitment fee determined on a daily basis equal to the Commitment Fee Rate in
effect on such day times such
38
Lender's Percentage Share of the unused portion of the Maximum Facility Amount
on each day during the Commitment Period, determined for each such day by
deducting from the amount of the Maximum Facility Amount at the end of such day
the Dollar Equivalent of the 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 Commitment Period. Borrower shall have the right from time to time to
permanently reduce the Maximum Facility Amount, provided that (i) notice of such
reduction is given not less than 2 Business Days prior to such reduction, (ii)
the resulting Maximum Facility Amount is not less than the Dollar Equivalent of
the 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) Letter of Credit Fees. In consideration of LC Issuer's issuance of
---------------------
any Letter of Credit, Borrower agrees to pay (i) to Administrative Agent, for
the account of all Lenders in accordance with their respective Percentage
Shares, a letter of credit fee equal to the Letter of Credit Fee Rate applicable
each day times the Dollar Equivalent of the face amount of such Letter of Credit
and (ii) to such LC Issuer for its own account, a letter of credit fronting fee
at a rate equal to one-eighth percent (0.125%) per annum times the Dollar
Equivalent of the face amount of such Letter of Credit. Each such fee will be
calculated on the face amount of each Letter of Credit outstanding on each day
at the above applicable rates and will be payable monthly in arrears on the last
day of each month. In addition, Borrower will pay to LC Issuer a minimum
administrative issuance fee and such other fees and charges customarily charged
by the LC Issuer in respect of any issuance, amendment or negotiation of any
Letter of Credit in accordance with the LC Issuer's published schedule of such
charges effective as of the date of such amendment or negotiation. In addition,
in the event any Canadian Letter of Credit shall at the request of Borrower or
Plains Marketing Canada, L.P., as the case may be, be issued pursuant to an LC
Issuer's Canadian office, Borrower will pay a minimum fee for such service as
customarily charged by such LC Issuer. In addition, and notwithstanding the
foregoing, Plains Marketing Canada, L.P., pursuant to each LC Application
executed by it, shall with respect to Canadian Letters of Credit requested by it
agree to pay such letter of credit fees as set forth in this Section 2.12(c)
(such obligation and Borrower's obligation set forth in this Section 2.12(c)
with respect to such Canadian Letters of Credit to be joint and several). Any
such payment of letter of credit fees made by Plains Marketing Canada, L.P.
shall, pursuant to Section 3.7(b) hereof, include all such additional amounts as
are needed to cause the amount received by Administrative Agent and LC Issuer,
in each case, after any deduction or withholding as may be required pursuant to
the Income Tax Act (Canada) or other applicable Canadian Laws, to equal the
amount which would have been receivable in the absence of such deduction or
withholding.
(d) Administrative Agent's Fees. In addition to all other amounts due to
---------------------------
Administrative Agent under the Loan Documents, Borrower will pay fees to
Administrative Agent as described in a letter agreement of even date herewith
between Administrative Agent and Borrower.
Section 2.13. Borrowing Base Reporting. The Borrowing Base Reports are
------------------------
subject to the procedures set forth on Schedule 6.
39
ARTICLE III - Payments to Lenders
-------------------
Section 3.1. General Procedures. Borrower will make each payment which it
------------------
owes under the Loan Documents to Administrative Agent for the account of the
Lender Party to whom such payment is owed in lawful money of the United States
of America, (unless otherwise expressly provided in this Agreement), without
set-off, deduction or counterclaim, and in immediately available funds. Each
such payment must be received by Administrative Agent not later than noon,
Boston, Massachusetts time, on the date such payment becomes due and payable.
Any payment received by Administrative 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
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 Note. When Administrative Agent collects or receives
money on account of the Obligations, Administrative Agent shall distribute all
money so collected or received, and each Lender Party shall apply all such money
so distributed, as follows:
(a) first, for the payment of all Obligations which are then due (and
if such money is insufficient to pay all such Obligations, first to any
reimbursements due Administrative Agent under Section 6.9 or 10.4 and then
to the partial payment of all other Obligations then due in proportion to
the amounts thereof, or as Lender Parties shall otherwise agree);
(b) then for the prepayment of amounts owing under the Loan Documents
(other than principal on the Notes) if so specified by Borrower;
(c) then for the prepayment of principal on the Notes, together with
accrued and unpaid interest on the principal so prepaid, and then held as
LC Collateral pursuant to Section 2.11(c); and
(d) last, for the payment or prepayment of any other Obligations.
All payments applied to principal or interest on any 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 2.5 and 2.6, as applicable. All distributions of
amounts described in any of subsections (b), (c) or (d) above shall be made by
Administrative Agent pro rata to each Lender Party then owed Obligations
described in such subsection in proportion to all amounts owed to all Lender
Parties which are described in such subsection; provided that if any Lender then
owes payments to LC Issuer for the purchase of a participation under Section
2.9(c) or to Administrative Agent under Section 9.4, any amounts otherwise
distributable under this section to such Lender shall be deemed to belong to LC
Issuer or Administrative Agent, respectively, to the extent of such unpaid
payments, and Administrative
40
Agent shall apply such amounts to make such unpaid payments rather than
distribute such amounts to such Lender. If any payment on account of any
Obligation is received in Canadian Dollars, instead of Dollars as required
pursuant to this section (whether voluntarily or pursuant to an order or
judgment or the enforcement thereof or the realization of any security or the
liquidation of such Restricted Person or otherwise howsoever), such payment
shall constitute a discharge of such Obligation only to the extent of the
equivalent in Dollars of such amount of Canadian Dollars determined by
Administrative Agent in accordance with its normal procedures and after
deducting any premium and costs of exchange, determined as of the Business Day
next following such receipt. If, for the purpose of obtaining or enforcing
judgment in any court in any Canadian jurisdiction, it becomes necessary to
convert any amount due in Dollars into Canadian Dollars, then the Dollar
Equivalent of such amount shall be determined on the Business Day following the
date such judgment is given, and in any event Restricted Persons shall continue
to be obligated to pay any deficiency owing to any Lender Party. If any Lender
Party receives any payment or payments on account of the liability of any
Restricted Person hereunder pursuant to any judgment or order in Canadian
Dollars, and the Dollar Equivalent of such amount on the Business Day next
following such receipt is less than the full amount of the Obligation due
immediately prior to such judgment or order, then Borrower on demand shall
indemnify and save such Lender Party harmless from and against any loss, cost or
expense arising out of or in connection with such deficiency. The agreement of
indemnity provided for in this Section 3.1 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.
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, Borrower will pay to
Administrative 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 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):
41
(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
LIBOR Rate) or against assets of, deposits with or for the account of, or
credit extended by, such Lender Party; or
(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 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 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.
42
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 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 LIBOR Rate does not fairly
reflect the cost to such Lender Party of making or maintaining loans based on
such rate, then, upon notice by such Lender Party to Borrower and Administrative
Agent, Borrower's right to elect LIBOR Loans from such Lender Party (or, if
applicable, to obtain Letters of Credit) shall be suspended to the extent and
for the duration of such illegality, impracticability or restriction and all
LIBOR Loans of such Lender Party which are then outstanding or are then the
subject of any Borrowing Notice and which cannot lawfully or practicably be
maintained or funded shall immediately become or remain, or shall be funded as,
Base Rate Loans of such Lender Party. Borrower agrees to indemnify each Lender
Party and hold it 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, Borrower will indemnify each Lender Party 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 a 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. Borrower covenants and agrees that:
------------------
(a) Borrower will indemnify each Lender Party against and reimburse
each 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
or any LIBOR Loans 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
43
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
Administrative 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 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 Lender Party's Loans and Note, and all other amounts payable by
Borrower to any 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 Borrower. In the event of
Borrower being compelled by Law to make any such deduction or withholding
from any payment to any Lender Party, 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 Borrower
should make any deduction or withholding as aforesaid, 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 Borrower is ever required to pay any Reimbursable Tax with
respect to any LIBOR Loan, 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 Loan into a Base Rate
Loan, but such election shall not diminish Borrower's obligation to pay all
Reimbursable Taxes.
(d) Notwithstanding the foregoing provisions of this section,
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
(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 any Lender Party, other than a
Lender Party (i) who is a U.S. person for Federal income tax purposes or
(ii) who has the Prescribed Forms on file with Administrative Agent (with
copies provided to 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 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,
44
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 the Lender Party providing the forms or statements,
(y) the Code, or (z) any applicable rules or regulations thereunder, permit
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 -- 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 Borrower,
provided that: (i) all Obligations of 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 Note 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 Borrower, Administrative Agent, such Lender Party and the replacement
Eligible Transferee shall otherwise comply with Section 10.5. Notwithstanding
the foregoing rights of Borrower under this section, however, Borrower may not
replace any Lender Party which seeks reimbursement for increased costs under
Section 3.2 through 3.7 unless Borrower is at the same time replacing all Lender
Parties which are then seeking such compensation.
ARTICLE IV - Conditions Precedent to Credit
------------------------------
Section 4.1. Documents to be Delivered. This Agreement shall not be
-------------------------
effective to amend or restate the Existing Agreement or govern the indebtedness,
obligations or liabilities thereunder and no Lender has any obligation to make
its first Loan, and LC Issuer has no obligation to issue the first 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
45
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 Borrower and each Guarantor,
with attached pro forma balance sheet for such Person giving effect to
the transactions contemplated by the Xxxxxx 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 Xxx Xxxxx, Esq., General Counsel for
Restricted Persons, substantially in the form set forth in Exhibit G-1,
Fulbright & Xxxxxxxx L.L.P., special Texas and New York counsel to
Restricted Persons, substantially in the form set forth in Exhibit X-0,
Xxxxxxx Xxxxx XXX, special Canadian counsel to Restricted Persons,
substantially in the form set forth in Exhibit G-3, and local counsel for
the states of California, Illinois, Louisiana, Mississippi 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.
46
(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) Borrower and Plains Marketing Canada, L.P. 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.
(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 Xxxxxx Acquisition Documents, and the Xxxxxx Acquisition
Closing Date shall have previously or contemporaneously occurred.
(q) Each Restricted Person shall have executed and delivered the
Revolver Agreement and all conditions precedent to the Revolver 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.
(s) The Borrowing Base as of the date of such first Loan and first
Letter of Credit shall be at least $5,000,000 more than the initial
Facility Usage on such date after giving effects to the Loans and Letters
of Credit requested for such date, and General Partner shall have delivered
to the Administrative Agent a Borrowing Base Report in reasonable detail
demonstrating compliance with this requirement.
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
47
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.
(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 Xxxxxx
Acquisition Documents, Plains MLP and 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.
48
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. Borrower is duly authorized to borrow funds hereunder.
Section 5.4. No Conflicts or Consents. The execution and delivery by the
------------------------
various Restricted Persons of the Loan Documents and Xxxxxx Acquisition
Documents to which each is a party, the performance by each of its obligations
under such Loan Documents and Xxxxxx Acquisition Documents, and the consummation
of the transactions contemplated by the various Loan Documents and various
Xxxxxx 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 in connection with the execution, delivery or
performance by any Restricted Person of any Loan Document or Xxxxxx Acquisition
Document or to consummate any transactions contemplated by the Loan Documents
and the Xxxxxx Acquisition Documents (except, in each case with respect to the
Xxxxxx 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 Xxxxxx Acquisition Documents.
Section 5.5. Enforceable Obligations. This Agreement is, and the other
-----------------------
Loan Documents and the Xxxxxx 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
49
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.
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
50
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 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.
51
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 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
52
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 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) Each Canadian Subsidiary 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 either Canadian Subsidiary nor 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
Subsidiary nor any Subsidiary of either such Person (and to the best knowledge
of each Canadian Subsidiary, 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
53
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 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 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 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 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 Borrower and each Guarantor and the
consummation of the transactions contemplated hereby, (i) 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
54
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) 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 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.
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 Revolver 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 Borrower, and to induce each Lender to enter into
this Agreement and extend credit hereunder, Plains MLP and 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
55
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 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
56
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 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 projections and budgets for
Plains MLP, and thereafter yearly financial projections during the
Commitment Period.
(e) On or about the twenty-sixth (26th) (but no later than the
twenty-eighth (28th)) day of each calendar month (i) a Borrowing Base
Report in the form of Exhibit H duly completed by an authorized officer of
General Partner and conforming with the requirements of Section 2.13, and
(ii) a statement reconciling such report with the Borrowing Base Report
delivered on or about the 26th day of the preceding calendar month.
(f) As soon as available, and in any event within thirty-five (35)
days after the end of each calendar month, a report setting forth for such
month aggregate 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 I. 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.
57
(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 xxxx 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.
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 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,
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. 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
58
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,
(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
59
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, 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
Borrower. 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. 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
60
any Lender) which Borrower 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.
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.
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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, 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 Borrower hereunder, 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. 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,
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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 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
Borrower thereof and (i) upon request and pursuant to the instructions of
Borrower, it shall, if no Default is then continuing, remit such proceeds to the
Borrower and (ii) at the request and expense of 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. Operating Practices. Each Restricted Person shall operate
-------------------
its business in a manner that is consistent with the policies and procedures
approved by the board of directors of General Partner and in effect on, and
delivered to Administrative Agent and Lenders prior to, the date hereof, and
revisions thereto referred to in the following sentence. Borrower shall review
such policies and procedures at least annually, and shall promptly recommend to
the board of directors of General Partner such revisions to such policies and
procedures as may be recommended by Restricted Persons' or, upon consultation
with Borrower and its consultants and at the request of Administrative Agent,
Administrative Agent's third party consultants, to remedy deficiencies in
internal controls, and Borrower shall promptly provide a report to Lenders
regarding such policies and procedures, including such policies and procedures
which the board of directors of General Partner could adopt and has adopted.
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ARTICLE VII - Negative Covenants
------------------
To conform with the terms and conditions under which each Lender is willing
to have credit outstanding to Borrower, and to induce each Lender to enter into
this Agreement and make the Loans, Plains MLP and 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 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 Revolver Agreement, provided that the principal
amount of loans and face amount of letters of credit thereunder at any one time
outstanding (excluding any exposure related to Hedging Contracts secured in
connection therewith) shall not exceed $630,000,000;
(f) guaranties by Plains MLP, Borrower or any Guarantor of trade payables
of any 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 (as defined in the Revolver
Agreement) to Borrower outstanding under the Revolver Agreement as therein
provided, (5) upon the receipt of net proceeds from the original issuance of
such Indebtedness, the US Commitment (as defined in the Revolver Agreement)
under the Revolver Agreement shall be reduced (as provided in the Revolver
Agreement) by an
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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
(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.
Section 7.2. Limitation on Liens. No Restricted Person will create,
-------------------
assume or permit to exist (i) any Lien upon any Accounts, inventory, cash or
investment securities which constitute Collateral except (A) Permitted Inventory
Liens, (B) Liens created pursuant to the Security Documents, Liens created
pursuant to the Revolver Agreement, and Liens created pursuant to the "Security
Documents" (as such term is defined in the Existing Agreement), (C) statutory
Liens in respect of First Purchase Crude Payables, (D) Liens of the type
described in clause (e) below in connection with any Eligible Margin Deposit to
secure Hedging Contracts permitted under Section 7.1 with the broker that is the
holder of such Eligible Margin Deposit, (E) Liens of the type described in
clauses (a), (c) and (f) below, and (F) any other Liens expressly permitted to
encumber such Collateral under any Security Document covering such Collateral or
(ii) any Lien upon any of the properties or assets other than such Collateral
which it now owns or hereafter acquires except the following (Liens, to the
extent permitted by this Section, herein called "Permitted Liens"):
(a) Liens created pursuant to this Agreement or the Security Documents,
Liens existing on the date of this Agreement and listed in the Disclosure
Schedule, and Liens created pursuant to the Revolver Agreement or the "Security
Documents" as defined in the Revolver, subject to the terms of the Intercreditor
Agreement.
(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,
65
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;
(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; and
66
(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.
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 Revolver Agreement, or an Affiliate of
any 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 Revolver 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
67
in the ordinary course of business and Investments permitted under Section 7.7
hereof or (c) sell, 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 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 direct 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 Borrower which is a partnership will allow any
diminution of Borrower's interest (direct or indirect) therein. Notwithstanding
the foregoing, Plains Marketing Canada, L.P. 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
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.
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
68
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 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 Plains Marketing Canada, L.P. 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
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
Borrower's request and expense, execute a release, satisfactory to 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
commitment hereunder is outstanding. Notwithstanding the foregoing, but subject
to Section 7.5, (i) Subsidiaries of Plains MLP, 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, Borrower, or any such
Guarantor, respectively, and to 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
Investments in any Person, other than Permitted Investments and Permitted
Acquisitions, or (d)
69
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 Borrower and any
Subsidiary of Borrower to: (a) pay dividends or make other distributions to
Borrower or Plains MLP, (b) redeem equity interests held in it by Borrower or
Plains MLP, (c) repay loans and other indebtedness owing by it to Borrower or
Plains MLP, or (d) transfer any of its assets to 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 Revolver Availability 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 on
the notes or banker's acceptances under the Revolver Agreement which are
required to be repaid within one year from the time of calculation and (b) all
Liabilities arising under permitted Hedging Contracts.
70
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.
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.
71
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) xxxx to market exposure relating to such contracts
(excluding aggregate xxxx 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.
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
72
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 Revolver 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 physical position would comply with the credit requirements of the
definition of "Approved Eligible Receivables".
Section 7.16. Redelivery of Borrowing Base Report. If any contract gives
-----------------------------------
rise to an "Eligible Receivable" that is reflected in a Borrowing Base Report
representing the obligation to deliver Petroleum Products in the month next
succeeding the month in which the Borrowing Base Report is delivered, and such
contract is modified, sold or exchanged in any way that would negatively affect
the Borrowing Base, then Borrower shall immediately (i) deliver to
Administrative Agent a revised Borrowing Base Report satisfactory to
Administrative Agent, which Administrative Agent shall thereafter furnish to
Lenders, and (ii) make any prepayment as may be required under Section 2.6
resulting from such reduced Borrowing Base.
Section 7.17. 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
73
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;
(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 Borrower;
74
(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 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
75
(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 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;
(k) Any Change in Control occurs; or
(l) Any Material Market Open Position Loss 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 Borrower 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
76
waived by 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 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 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 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 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 - Administrative Agent
--------------------
Section 9.1. Appointment and Authority. 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
77
from Borrower of any communication calling for action on the part of Lenders or
upon notice from 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 K.
Section 9.2. Exculpation, Administrative Agent's Reliance, Etc. Neither
-------------------------------------------------
Administrative 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,
Administrative Agent (a) may treat the payee of any Note as the holder thereof
until Administrative Agent receives written notice of the assignment or transfer
thereof in accordance with this Agreement, signed by such payee and in form
satisfactory to Administrative Agent; (b) may consult with legal counsel
(including counsel for 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 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
---------------
ADMINISTRATIVE AGENT (TO THE EXTENT NOT REIMBURSED BY BORROWER WITHIN TEN (10)
DAYS AFTER DEMAND) FROM AND AGAINST SUCH LENDER'S 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
78
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 ADMINISTRATIVE 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 ADMINISTRATIVE AGENT,
provided only that no Lender shall be obligated under this section to indemnify
Administrative Agent for that portion, if any, of any liabilities and costs
which is proximately caused by Administrative Agent's own individual gross
negligence or willful misconduct, as determined in a final judgment. Cumulative
of the foregoing, each Lender agrees to reimburse Administrative Agent promptly
upon demand for such Lender's Percentage Share of any costs and expenses to be
paid to Administrative Agent by Borrower under Section 10.4(a) to the extent
that Administrative Agent is not timely reimbursed for such expenses by Borrower
as provided in such section. As used in this section the term "Administrative
Agent" shall refer not only to the Person 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,
----------------
Administrative Agent shall have the same rights and obligations as any Lender
and may exercise such rights as though it were not Administrative Agent.
Administrative 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 Borrower
or otherwise, obtain payment of a portion of the aggregate Obligations owed to
it which, taking into account all distributions made by Administrative Agent
under Section 3.1, causes such Lender Party to have received more than it would
have received had such payment been received by Administrative 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 Administrative Agent and all
Lender Parties
79
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.
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 Administrative Agent in good faith
-----------
determines that it is uncertain about how to distribute to Lender Parties any
funds which it has received, or whenever Administrative Agent in good faith
determines that there is any dispute among Lender Parties about how such funds
should be distributed, Administrative Agent may choose to defer distribution of
the funds which are the subject of such uncertainty or dispute. If
Administrative Agent in good faith believes that the uncertainty or dispute will
not be promptly resolved, or if Administrative Agent is otherwise required to
invest funds pending distribution to Lender Parties, Administrative 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
Administrative Agent for distribution to Lender Parties (other than to the
Person who is Administrative Agent in its separate capacity as a Lender Party)
shall be held by Administrative Agent pending such distribution solely as
Administrative Agent for such Lender Parties, and Administrative 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 Administrative Agent under Section 9.9). Lender Parties may waive or
amend such provisions as they desire without any notice to or consent of
Borrower or any other Restricted Person.
Section 9.9. Resignation. Administrative Agent may resign at any time by
-----------
giving written notice thereof to Lenders and 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 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
80
Agent has been appointed and has accepted such appointment, then the retiring
Administrative Agent may 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.
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 Borrower, on the one
hand, and the Co-Agents and Administrative Agent, on the other hand, shall be
solely that of borrower and lender. None of the Co-Agents shall have any
fiduciary responsibilities to Borrower or any of its Affiliates. None of the
Co-Agents undertakes any responsibility to Borrower or any of its respective
Affiliates to review or inform Borrower of any matter in connection with any
phase of Borrower's or such Affiliate's business or operations.
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 Borrower, by Borrower, (ii if
such party is Administrative Agent or 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
10.9).
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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 Percentage Share of any such Lender or
the maximum amount any such Lender is committed to fund in respect of Letter of
Credit Obligations and Loans or subject such Lender to any additional
obligations, (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 "Borrowing Base" or any of the terms used in that definition, (6)
amend the definition herein of "Majority Lenders" or otherwise change the
aggregate amount of Percentage Shares which is required for Administrative
Agent, Lenders or any of them to take any particular action under the Loan
Documents, (7) release Borrower from its obligation to pay such Lender's Note or
any Guarantor from its guaranty of such payment, or (8) release any Collateral,
except such releases relating to sales of property permitted under Section 7.5.
(b) Acknowledgments and Admissions. 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 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 Borrower with respect to any Loan Document or the transactions
contemplated thereby, (v) the relationship pursuant to the Loan Documents
between 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 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, 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 Note for its own account in the ordinary course of its commercial
lending business; however, the
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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 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 Borrower 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 Borrower or
agreements and covenants of Borrower 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
83
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 Borrower and
Restricted Persons at the address of Borrower 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.
Section 10.4. Payment of Expenses; Indemnity.
------------------------------
(a) Payment of Expenses. Whether or not the transactions contemplated by
-------------------
this Agreement are consummated, 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) 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, 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. 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
84
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).
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
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, 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 Borrower nor any
Affiliates of 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 Borrower
or any Affiliate of 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 Borrower or
its Affiliates have purchased all of the Obligations.
85
(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 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 Borrower; provided, however, that no
liability shall arise if any Lender fails to give such notice to 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) Each such assignment shall apply to all Obligations owing to
the assignor Lender hereunder and to the unused portion of the assignor
Lender's commitments, so that after such assignment is made the assignor
Lender shall have a fixed (and not a varying) Percentage Share in its Loans
and Note and be committed to make that Percentage Share of all future
Loans, the assignee shall have a fixed Percentage Share in such Loans and
Note and be committed to make that Percentage Share of all future Loans,
and the Percentage Share of the Maximum Loan Amount of each of the assignor
and assignee shall equal or exceed $5,000,000.
(ii) The parties to each such assignment shall execute and deliver
to Administrative Agent, for its acceptance and recording in the "Register"
(as defined below in this section), an Assignment and Acceptance in the
form of Exhibit J, 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. Upon
such execution, delivery, and payment and upon the satisfaction of the
conditions set out in such Assignment and Acceptance, then (i) Borrower
shall issue new Notes to such assignor and assignee upon return of the old
Notes to 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
Borrower and each Lender a revised Schedule 1 hereto showing the revised
Percentage Shares of such assignor Lender and such assignee Lender and the
Percentage Shares of all other Lenders.
86
(iii) Each assignee 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).
(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 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 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 Borrower 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 Borrower 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
invests in bank loans, any other fund that 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 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
87
(z) if such Lender assignor assigns or transfers to such assignee any of
such Lender's commitment, such 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. BORROWER
HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING AGAINST 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, BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. BORROWER AGREES THAT SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO
88
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, BORROWER HEREBY IRREVOCABLY DESIGNATES AND
APPOINTS CORPORATION SERVICE COMPANY, 00 XXXXX XXXXXX, XXXXXX, XXX XXXX 00000,
AS AGENT OF BORROWER TO RECEIVE SERVICE OF ALL PROCESS BROUGHT AGAINST BORROWER
WITH RESPECT TO ANY SUCH PROCEEDING IN ANY SUCH COURT IN NEW YORK, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY 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 BORROWER AT ITS ADDRESS SET FORTH BELOW, BUT
THE FAILURE OF BORROWER TO RECEIVE SUCH COPIES SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS AS AFORESAID. 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 BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. IF FOR ANY REASON CORPORATION SERVICE COMPANY
SHALL RESIGN OR OTHERWISE CEASE TO ACT AS BORROWER'S AGENT, 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 LC Obligations with respect to Canadian Letters of Credit and the
other Loan Documents and are hereby expressly waived by 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.
89
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 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.
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
90
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.
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 (REGARDLESS OF HOW
91
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 its entirety the Existing Agreement, at which time (the
"Effective Time") each Lender and each Restricted Person hereby agrees that (i)
the Percentage Share of each Lender 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, all letters of credit issued and
outstanding under the Existing Agreement and reimbursement obligations with
respect thereto, 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 all Loans as of the
Effective Time.
Section 10.17. 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 Borrower 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
Borrower to Administrative Agent and Lender Parties 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
92
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.]
93
IN WITNESS WHEREOF, this Agreement is executed as of the date first written
above.
BORROWER: PLAINS MARKETING, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: ___________________________________
Xxxx Xxxxxx, Exec. Vice President
GUARANTORS: ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: ___________________________________
Xxxx Xxxxxx, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: ___________________________________
Xxxx Xxxxxx, Exec. Vice President
Address for Borrower and Guarantors:
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
94
FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and
a Lender
By:_____________________________________
Xxxxxxxx Xxxxx, Managing Director
Address:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Mail Code: MADE 10008A
Telephone: (000) 000-0000
Fax: (000) 000-0000
FLEET SECURITIES, INC.,
Lead Arranger and Book Manager
By:____________________________________
Xxxxxxx Xxxxx, Managing Director
95
FIRST UNION NATIONAL BANK,
Syndication Agent and a Lender
By:_______________________________________
Xxxxxx X. Xxxxxxxxx, Xx. Vice Pres.
Address:
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
96
BANK OF AMERICA, N.A.,
Documentation Agent and a Lender
By:________________________________
Name:
Title:
Address:
Energy Finance Group
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
97
BANK ONE, NA (MAIN OFFICE CHICAGO),
Senior Managing Agent and a Lender
By:___________________________________
Name:
Title:
Address:
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx-Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
98
BNP PARIBAS,
Senior Managing Agent and a Lender
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Address:
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx/Xxxxxx Xxxxx
Telephone: (000) 000-0000 (EC); -2029
Telecopy: (000) 000-0000
99
FORTIS CAPITAL CORP.,
Senior Managing Agent and a Lender
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Address:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
100
U.S. BANK NATIONAL ASSOCIATION,
a Lender
By:_________________________________
Name:
Title:
Address:
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
000
XXXX XX XXXXXXXX,
a Lender
By:_________________________________
Name:
Title:
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With Copy to:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
000
XXXXX XXXXX XXXX (XXXXX),
NATIONAL ASSOCIATION, a Lender
By:_________________________________
Name:
Title:
Address:
0000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
103
SIEMENS FINANCIAL SERVICES, INC.,
a Lender
By:_________________________________
Name:
Title:
Address:
000 XX Xxxxxxx 00
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
000
XXX XXXX XX XXXX XXXXXX,
a Lender
By:_________________________________
Name:
Title:
Address:
000 Xxxxxxxxx Xxxxxx, X.X., Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: 404-877-_____
Telecopy: 000-000-0000
With Copy to:
Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
105
CREDIT AGRICOLE INDOSUEZ,
a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Address:
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
106
GUARANTY BANK,
a Lender
By:_________________________________
Name:
Title:
Address:
0000 Xxxxxxxxx Xxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
000
XXXXXXX XXXXXXXX (XXXXX), INC.,
a Lender
By:_________________________________
Name:
Title:
Address:
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
000
XXXXXXXXX XXXX XX XXXXX, N.A.,
a Lender
By:_________________________________
Name:
Title:
Address:
0 Xxxx Xxx Xxxx
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
000
XXXXX XXXX XX XXXXXXXXXX, X.X.,
a Lender
By:_________________________________
Name:
Title:
Address:
000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
110
COMERICA BANK-TEXAS,
a Lender
By:_________________________________
Name:
Title:
Address:
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
111
