CONSENT AND AMENDMENT
This Consent and Amendment dated to be effective as of December 19, 1997
("Agreement"), is between the undersigned noteholder, (the "Noteholder") and
SFPP, L.P., a Delaware limited partnership, formerly known as Southern Pacific
Pipelines Partnership, L.P. (the "Company").
INTRODUCTION
Reference is made to the Note Agreement dated as of December 8, 1988 (the
"Note Agreement") between the Noteholder and the Company, the defined terms of
which are used herein unless otherwise defined herein. In connection with the
consummation of the transaction described below (the "Transaction"), the Company
has requested (a) a consent to the replacement of the Company's Current General
Partner (hereinafter defined) with the New General Partner (hereinafter
defined), and (b) an amendment of the Note Agreement to permit certain
Restricted Payments in connection therewith.
The basis of the Transaction is the acquisition by Xxxxxx Xxxxxx Energy
Partners, L.P. (the "Purchaser"), through its affiliate Xxxxxx Xxxxxx Operating
L.P. "D," a Delaware limited partnership (the "New General Partner"), of a 99.5%
general partnership interest in the Company. The Transaction will result in the
exchange of the existing general partner interest of Santa Fe Pacific Pipelines,
Inc., a Delaware corporation, formerly known as Southern Pacific Pipelines, Inc.
(the "Current General Partner") for a 1.0101% special limited partner interest
(the "SLP Interest"), which SLP Interest will be partially redeemed by the
Company with a payment of $5,800,000 (the "Special Distribution"), reducing the
Current General Partner's SLP Interest to 0.5%, and increasing the New General
Partner's general partnership interest to 99.5%. Thereafter, the Current General
Partner may require the Company to purchase the remaining SLP Interest, which
payment (the "Put Right Payment") the Company may make in cash or common units
of the Purchaser, at the Company's election, and the New General Partner may
require the Current General Partner to sell to the Company the remaining SLP
Interest, which payment (the "Call Right Payment") the Company may make in cash
or common units of the Purchaser, at the New General Partner's election.
The Transaction is described with greater detail in Exhibit B to the request for
consent and the Purchase Agreement dated October 18, 1997, among the Purchaser,
Kinder Xxxxxx X.X., Inc., Santa Fe Pacific Pipeline Partners, L.P., SFP Pipeline
Holdings, Inc., and the Current General Partner, which is attached as Exhibit C
to the request for consent.
Therefore, in connection with the foregoing and for other good and
valuable consideration, the Noteholder and the Company agree as follows:
Section 1. Consent. Section 11(1) of the Note Agreement requires the
consent of the holders of a majority of the outstanding principal amount of
the Notes to the replacement of the Current General Partner. The Noteholder
hereby consents to the replacement of the Current General Partner with the New
General Partner in connection with the Transaction.
Section 2. Amendment. Section 18 of the Note Agreement requires the
consent of the holders of 66-2/3% of the outstanding principal amount of the
Notes to the amendment of the Note Agreement. Section 10.4 of the Note
Agreement limits the Company's ability to make Restricted Payments. In order
to exclude the Special Distribution and the Put Right Payment (but not the
Call Right Payment) from such limitations, the definition of "Restricted
Payments" is amended by adding the following provision to the end of such
definition:
Notwithstanding the foregoing, neither the Special Distribution in an
amount not to exceed $5,800,000 nor any payment in connection with the Put
Notice (in each case, as defined in the Purchase Agreement dated October
18, 1997, among Xxxxxx Xxxxxx Energy Partners, L.P., Kinder Xxxxxx X.X.,
Inc., Santa Fe Pacific Pipeline Partners, L.P., SFP Pipeline Holdings,
Inc., and Santa Fe Pacific Pipelines, Inc., as in effect on October 18,
1997 (the "Purchase Agreement"), the amount of which is calculated as set
forth in Section 1.3 of such Purchase Agreement, shall constitute a
"Restricted Payment" for purposes of this Agreement.
Section 3. Representations and Warranties. The Company represents and
warrants that (a) the execution, delivery and performance of this Agreement
are within the power and authority of the Company and have been duly
authorized by appropriate proceedings, (b) this Agreement constitutes legal,
valid, and binding obligations of the Company enforceable in accordance with
their terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the rights of creditors
generally and general principles of equity, and (c) upon the effectiveness of
this Agreement and the amendment of the Note Agreement as provided for herein,
no Event of Default shall exist under the Note Agreement and there shall have
occurred no event which with notice of lapse of time would become an Event of
Default under the Note Agreement, as amended.
Section 4. Effect on Note Agreement. Except as amended herein, the Note
Agreement remains in full force and effect as originally executed. Nothing
herein shall act as a waiver of the Noteholder's rights under the Note
Agreement as amended, including the waiver of any default or event of default,
however denominated. The Company must continue to comply with the terms of the
Note Agreement, as amended. Any breach of the representations and warranties
under this Agreement may be a default or Event of Default under the Note
Agreement.
Section 5. Miscellaneous. This Agreement shall be effective as of the
date hereof when duly executed and delivered by the parties hereto. This
Agreement may be executed in multiple counterparts.
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and CFO
NOTEHOLDER:
Teachers Ins. & Annuity Assoc.
By: /s/ Xxxxxxx X. Xxxxxxxx III
Name: Xxxxxxx X. Xxxxxxxx III
Title: Managing Director-Private Placements
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
The Northwestern Mutual Life Insurance Company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
CIG & Co.
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Pacific Life Ins. Co. (F.K.A. Pacific Mutual Life
Ins. Co.)
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: AVP
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Provident Life and Accident Insurance Company
By: Provident Investment Management LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
The Xxxx Xxxxxx Life Insurance Company
By: Provident Investment Management, LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
The Xxxx Xxxxxx Variable Annuity Insurance
Company
By: Provident Investment Management, LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
The Xxxx Xxxxxx Protective Life Insurance
Company
By: Provident Investment Management, LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Sun Life Assurance Company of Canada (U.S.)
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President, U.S. Private Placements -
for President
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Senior Associate Counsel - for Secretary
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Sun Life Assurance Company of Canada
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President, U.S. Private Placements -
for President
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Senior Associate Counsel - for Secretary
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
American General Life and Accident Insurance
Company
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Investment Officer
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
American United Life Insurance Company
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President of Private Placements
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Massachusetts Mutual Life Ins. Co.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
First Unum Life Insurance Company
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Director, Corporate Securities
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Unum Life Insurance Company of America
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Director, Corporate Securities
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Xxxx & Co.
By: /s/ Xxxxxx Kellerborn
Name: Xxxxxx Kellerborn
Title: Reorg. Specialist
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Phoenix Home Life Mutual Insurance Company
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Pan America Life Insurance Co.
By: /s/ X. Xxxxxxxx Stone
Name: X. Xxxxxxxx Xxxxx
Title: Vice President, Corporate Securities
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Aid Association for Lutherans
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President Investments
By: /s/ R. Xxxxx Xxxxxx
Name: R. Xxxxx Xxxxxx
Title: Second Vice President - Securities
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Jefferson Pilot Life Insurance Company
By: /s/ Xxxxxx X. Xxxxxx, XX
Name: Xxxxxx X. Xxxxxx, XX
Title: Second Vice President
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Xxxxxxx & Co.
By: /s/ Xxxxxx Kellenborn
Name: Xxxxxx Kellenborn
Title: Reorg. Specialist
EXECUTED as of the date first above written.
COMPANY:
SFPP, L.P.
By: Santa Fe Pacific Pipelines, Inc.,
its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
NOTEHOLDER:
Massachusetts Casualty Insurance Company
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
Int. Cumulative
Maturity Principal Rate Total Current Noteholder
CONSENT
RECEIVED
45,000,000.00 TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
35,000,000.00 NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, THE
29,500,000.00 CIGNA PRIVATE PLACEMENTS (NOMINEE: CIG & CO.)
20,000,000.00 PACIFIC MUTUAL INSURANCE COMPANY (NOMINEE: XXXXXX & CO.)
18,000,000.00 XXXX XXXXXX AND PROVIDENT LIFE GROUP
10,500,000.00 SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
10,000,000.00 AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE CO.
8,000,000.00 AMERICAN UNITED LIFE INSURANCE COMPANY
8,000,000.00 MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
8,000,000.00 FIRST UNUM AND UNUM LIFE GROUP
5,500,000.00 XXXX & CO. (FBL INVESTMENT ADVISORY SERVICES)
4,000,000.00 PHOENIX MUTUAL LIFE INSURANCE COMPANY
3,000,000.00 PAN AMERICAN LIFE INSURANCE COMPANY
3,000,000.00 AID ASSOCIATION FOR LUTHERANS
3,000,000.00 JEFFERSON-PILOT LIFE INSURANCE COMPANY
2,000,000.00 XXXXXXX & CO. (AMERICAN MUTUAL LIFE INSURANCE COMPANY)
1,000,000.00 MASSACHUSETTS CASUALTY INSURANCE COMPANY
213,500,000.00 TOTAL
185,000,000.00 TOTAL REQUIRED
