ASSUMPTION, RATIFICATION AND CONFIRMATION AGREEMENT
Exhibit 10.54
THIS ASSUMPTION, RATIFICATION AND CONFIRMATION AGREEMENT, dated as of January 1, 2008 (this
“Agreement”) is by PLAINS MIDSTREAM CANADA ULC, an Alberta unlimited liability company
(“Plains Midstream Canada”), in favor of the Lender Parties under that certain Second
Amended and Restated Credit Agreement [US/Canada] dated as of July 31, 2006 (as amended by that
certain First Amendment to Second Amended and Restated Credit Agreement dated as of July 31, 2007,
and from time to time amended, the “Credit Agreement”), by and among Plains All American
Pipeline, L.P., as US Borrower, PMC (Nova Scotia) Company, Plains Marketing Canada, L.P. and
Rangeland Pipeline Company (“RPC”), as Canadian Borrowers, Bank of America, N.A., as
Administrative Agent, Bank of America, N.A., acting through its Canada Branch, as Canadian
Administrative Agent, and the Lenders a party thereto. Terms used and not defined herein shall
have the meanings given them in the Credit Agreement.
W I T N E S S E T H
WHEREAS, US Borrower formed Plains Midstream Canada, and effective as of the date hereof
Plains Midstream Canada has succeeded to the assets and liabilities of (i) RPC, Rangeland Northern
Pipeline Company (“RNPC”) and Rangeland Marketing Company (“RMC”, and together with
RPC and RNPC, collectively, the “Rangeland Entities”), and (ii) the immediate parent entity
of the Rangeland Entities, PEG Canada, LP (“PEG”). The transfer of such assets and
liabilities took place pursuant to a succession of substantially concurrent transactions
consummated effective as of the date hereof (the “Rangeland Transactions”); and
WHEREAS, immediately prior to the Rangeland Transactions, RPC was a Canadian Borrower, and
upon consummation of the Rangeland Transactions, Plains Midstream Canada is intended to replace RPC
as a Canadian Borrower; and
WHEREAS, Lender Parties (i) consented to (A) the Rangeland Transactions, (B) the transfer by
RPC of all of its assets to Plains Midstream Canada, (C) the transfer by RPC of all of its rights
and obligations under the Loan Documents to Plains Midstream Canada, (D) the dissolution of RPC
after such transfers, and (E) the substitution of Plains Midstream Canada as a Canadian Borrower
with the rights and obligations under the Loan Documents as held by RPC immediately prior to its
transfer of assets to Plains Midstream Canada, such that Plains Midstream Canada shall continue as
a Canadian Borrower, with all references to RPC in any and all Loan Documents thereafter referring,
mutatis mutandis, instead to Plains Midstream Canada, and (ii) waived any Default or Event of
Default caused thereby pursuant to, subject to the terms and conditions set forth in, that certain
Limited Consent and Waiver dated December 20, 2007 (the “Limited Consent”); and
WHEREAS, it is a condition to the Limited Consent that contemporaneous with the consummation
of the Rangeland Transactions, Administrative Agent shall receive an assumption, ratification and
confirmation by Plains Midstream Canada expressly assuming, ratifying and confirming any and all
Obligations of RPC under any and all Loan Documents, consented to by Guarantors.
1
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Plains Midstream Canada hereby agrees
with Lender Parties as follows:
ARTICLE I. ASSUMPTION, RATIFICATION AND CONFIRMATION
Section 1.1. Assumption, Ratification and Confirmation. Plains Midstream Canada
hereby unconditionally assumes, and shall hereafter pay, perform and discharge, all Obligations of
RPC under the Credit Agreement and the other Loan Documents, including any and all Obligations of
RPC in its capacity as a Canadian Borrower under the Credit Agreement. Plains Midstream Canada
hereby ratifies and confirms each such Obligation and confirms that (i) any and all such
Obligations constitute the legal, valid and binding obligations of Plains Midstream Canada,
enforceable in accordance with their terms except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the enforcement of creditors’ rights
and general principles of equity, and (ii) all rights of Lender Parties under the Loan Documents
are preserved unimpaired by the Rangeland Transactions, and all Obligations of RPC under the Loan
Documents attach to Plains Midstream Canada and may be enforced against Plains Midstream Canada to
the same extent as if said Obligations had been incurred or contracted by Plains Midstream Canada.
Section 1.2. Rangeland References. As consented to by Lenders pursuant to the Limited
Consent, Plains Midstream Canada, US Borrower, the other Canadian Borrowers, Administrative Agent
and Canadian Agent hereby acknowledge and agree that any and all references to “Rangeland” or “RPC”
in any and all Loan Documents shall hereafter refer, mutatis mutandis, instead to Plains Midstream
Canada.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of Borrowers. In order to induce
Administrative Agent and Lender Parties to accept this Agreement, US Borrower, with respect to
itself and its Subsidiaries, and the Canadian Borrowers, represent and warrant to Administrative
Agent and each Lender Party that:
(a) The representations and warranties contained in Article V of the Credit Agreement
are true and correct at and as of the time of the effectiveness hereof, except to the extent
that such representation and warranty was made as of a specific date or updated, modified or
supplemented as of a subsequent date with the consent of Majority Lenders, then in each case
such other date. No Default or Event of Default exists as of the date hereof and after
giving effect hereto. No Material Adverse Change has occurred since December 31, 2006.
(b) Each Restricted Person is duly authorized to execute and deliver this Agreement, to
the extent a party hereto, and US Borrower and each Canadian Borrower is and will continue
to be duly authorized to borrow and perform its obligations under the Credit Agreement.
Each Restricted Person a party hereto has duly taken all action necessary to authorize the
execution and delivery of this Agreement and to authorize the performance of its obligations
hereunder.
2
(c) The execution and delivery by each Restricted Person of this Agreement, to the
extent a party hereto, the performance by it of its obligations hereunder, and the
consummation of the transactions contemplated hereby, do not and will not (i) violate any
provision of any Law applicable to it or of the organizational documents of such Restricted
Person, or of any judgment, order or material license or permit applicable to or binding
upon any Restricted Person, (ii) result in the acceleration of any Indebtedness owed by it,
or (iii) result in the creation of any consensual Lien upon any of its material assets or
properties of any Restricted Person, except Permitted Liens, or , without duplication, as
expressly contemplated in, or permitted by, the Loan Documents. Except for those which have
been duly obtained, or, without duplication, as are expressly contemplated in , or permitted
by the Loan Documents, disclosed in the Disclosure Schedule or disclosed pursuant to Section
6.4 of the Credit Agreement, no consent, approval, authorization or order of any
Governmental Authority is required on the part of any Restricted Person a party thereto
pursuant to the provisions of any material Law applicable to it as a condition to its
execution and delivery by each Restricted Person of this Agreement and the performance of
its obligations hereunder, to the extent a party hereto, or to consummate the transactions
contemplated hereby.
(d) When duly executed and delivered, this Agreement and each of the Loan Documents, as
amended hereby, will be a legal and binding instrument and agreement of each Restricted
Person to the extent a party hereto, enforceable in accordance with its terms, (subject, as
to enforcement of remedies, to applicable bankruptcy, insolvency and similar laws applicable
to creditors’ rights generally and general principles of equity).
ARTICLE III. MISCELLANEOUS
Section 3.1. Ratification of Agreements. The Credit Agreement, as hereby amended, is
hereby ratified and confirmed in all respects. The Loan Documents, as they may be amended or
affected by this Agreement, are hereby ratified and confirmed in all respects by US Borrower and
each Canadian Borrower. Any reference to the Credit Agreement in any Loan Document shall be deemed
to refer to this Agreement also. The execution, delivery and effectiveness of this Agreement
shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy
of Administrative Agent or any Lender under the Credit Agreement or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement or any other Loan Document.
Section 3.2. Ratification of Security Documents. Borrowers, Administrative Agent,
Canadian Administrative Agent and Lenders each acknowledges and agrees that any and all
Obligations, including Canadian Loans to Plains Midstream Canada, are guarantied by the respective
Guarantors.
Section 3.3. Survival of Agreements. All representations, warranties, covenants and
agreements of each Restricted Person a party hereto shall survive the execution and delivery of
this Agreement and the performance hereof, including without limitation the making or granting of
each Loan, and shall further survive until all of the Obligations under the Credit Agreement are
paid in full. All statements and agreements contained in any certificate or instrument delivered
by any Restricted Person hereunder or under the Credit Agreement to Administrative Agent or any
Lender shall be deemed to constitute representations and warranties by, or
3
agreements and covenants of, Borrower and each Canadian Borrower under this Agreement and
under the Credit Agreement.
Section 3.4. Loan Documents. This Agreement is a Loan Document, and all provisions in
the Credit Agreement pertaining to Loan Documents apply hereto.
Section 3.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY AND PERFORMANCE.
Section 3.6. Counterparts. This Agreement may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which when so executed shall
be deemed to constitute one and the same Agreement. Delivery of an executed signature page by
facsimile transmission shall be effective as delivery of a manual executed counterpart.
4
IN WITNESS WHEREOF, this Assumption, Ratification and Confirmation Agreement is executed as of
the date first written above and effective as of the date hereof immediately following the
consummation of the Rangeland Transactions.
| PLAINS MIDSTREAM CANADA ULC |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Vice President and Treasurer | ||||
| PLAINS ALL AMERICAN PIPELINE, L.P., US Borrower By: PAA GP LLC, its general partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| PMC (NOVA SCOTIA) COMPANY, a Canadian Borrower |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx, Vice President and Treasurer | ||||
| PLAINS MARKETING CANADA, L.P., a Canadian Borrower By: PMC (Nova Scotia) Company, its general partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx, Vice President and Treasurer | ||||
| PLAINS ALL AMERICAN PIPELINE, L.P., Guarantor By: PAA GP LLC, its general partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| AGREED AND ACCEPTED: BANK OF AMERICA, N.A., Administrative Agent |
||||
| By: | /s/ Xxxx Xxx Xxxxx | |||
| Name: | Xxxx Xxx Xxxxx | |||
| Title: | Vice President | |||
| BANK OF AMERICA, N.A., acting through its Canada Branch, as Canadian Administrative Agent |
||||
| By: | /s/ Xxxxxx Sales xx Xxxxxxx | |||
| Name: | Xxxxxx Sales xx Xxxxxxx | |||
| Title: | Vice President | |||
CONSENT AND AGREEMENT
Each of the undersigned Guarantors hereby consents to the provisions of this Agreement and the
execution and delivery of Canadian Notes by Plains Midstream Canada, and the transactions
contemplated herein and therein and hereby and thereby (i) acknowledges and agrees that any and all
indebtedness, liabilities or obligations of US Borrower and each Canadian Borrower, including
Plains Midstream Canada, arising under or in connection with the Credit Agreement and the Notes,
including Canadian Notes issued by Plains Midstream Canada, are Obligations and are guarantied
indebtedness under such Guarantor’s Guaranty, (ii) ratifies and confirms its Guaranty made by it
for the benefit of Administrative Agent and Lenders, and (iii) expressly acknowledges and agrees
that such Guarantor guarantees all indebtedness, liabilities and obligations of US Borrower and
each Canadian Borrower, including Plains Midstream Canada, arising under or in connection with the
Credit Agreement and the Notes, including Canadian Notes issued by Plains Midstream Canada,
pursuant to the terms of such Guaranty, and agrees that its obligations and covenants thereunder
are unimpaired hereby and shall remain in full force and effect.
| PLAINS MARKETING, L.P. PLAINS PIPELINE, L.P. By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| PAA FINANCE CORP. PMC (NOVA SCOTIA) COMPANY |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx, Vice President and Treasurer | ||||
| PLAINS MARKETING GP INC. |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| PLAINS MARKETING CANADA LLC PICSCO LLC PLAINS LPG SERVICES GP LLC By: Plains Marketing, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| PLAINS MARKETING CANADA, L.P. By: PMC (Nova Scotia) Company, its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx, Vice President and Treasurer | ||||
| BASIN PIPELINE HOLDINGS, L.P. By: Basin Holdings GP LLC, its General Partner By: Plains Pipeline, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| RANCHO PIPELINE HOLDINGS, L.P. By: Rancho Holdings GP LLC, its General Partner By: Plains Pipeline, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| BASIN HOLDINGS GP LLC RANCHO HOLDINGS GP LLC By: Plains Pipeline, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx, Vice President and Treasurer | ||||
| PLAINS LPG SERVICES, L.P. PLAINS LPG MARKETING LP By: Plains LPG Services GP LLC, its General Partner By: Plains Marketing, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| LONE STAR TRUCKING, LLC By: Plains LPG Services, L.P., its Sole Member By: Plains LPG Services GP LLC, its General Partner By: Plains Marketing, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| PLAINS MARKETING INTERNATIONAL LP By: PICSCO LLC, its General Partner By: Plains Marketing, L.P., its Sole Member By: Plains Marketing GP Inc., its General Partner |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Senior Vice President-Finance and Treasurer | ||||
| PEG CANADA GP LLC PACIFIC ENERGY GROUP LLC PACIFIC MARKETING AND TRANSPORTATION LLC ROCKY MOUNTAIN PIPELINE SYSTEM LLC RANCH PIPELINE LLC PACIFIC ATLANTIC TERMINALS LLC PACIFIC L.A. MARINE TERMINAL LLC AURORA PIPELINE COMPANY LTD. PACIFIC ENERGY FINANCE CORPORATION |
||||
| By: | /s/ Xx Xxxxxxx | |||
| Xx Xxxxxxx | ||||
| Vice President-Finance and Treasurer | ||||
