EXHIBIT 10.37
TO: The Lenders under the Amended and Restated Credit Agreement (REVOLVING
CREDIT FACILITY) dated as of May 4, 2001, as amended and in effect through
the Third Amendment thereto (the "Agreement"), among Plains Marketing, L.P.
("US Borrower"), All American Pipeline, L.P. and Plains All American
Pipeline, L.P., as guarantors, Fleet National Bank, as Administrative Agent,
The Toronto-Dominion Bank, as Canadian Agent, PMC (Nova Scotia) Company
("Term Borrower"), Plains Marketing Canada, L.P. ("Canadian Revolver
Borrower"), and the Lenders named therein.
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Ladies and Gentlemen:
Capitalized terms used herein and not otherwise defined shall have the
meaning given them in the Agreement, and reference is hereby made to the
Agreement for all purposes in connection herewith. This Amendment is a Loan
Document.
All American proposes to purchase certain pipeline assets and equity
interests in partnerships owning certain pipeline assets as previously disclosed
by US Borrower to Administrative Agent and Lenders (the "Subject Acquisition").
The cash purchase price of the Subject Acquisition is approximately
$147,000,000, plus a contingent payment of up to $30,000,000 (the "Contingent
Payment Obligation"); provided, in the event certain third-party rights to
purchase certain of the assets are exercised (the "First Refusal Rights"), such
purchase price will be approximately $114,000,000, plus the Contingent Payment
Obligation. The Subject Acquisition does not constitute a Permitted Acquisition
and therefore is not permitted under Section 7.7(c) of the Agreement. In
addition, clause (C)(iv)(b) of the definition of Permitted Acquisitions set
forth in the Agreement generally provides that the aggregate total purchase
price for acquisitions that are not otherwise covered by clause (A) or (B) of
such definition which exceed $5,000,000 from the date of the Agreement through
the US Maturity Date cannot exceed $50,000,000.
US Borrower is seeking consent to (i) the Subject Acquisition, including
the exclusion of the Contingent Payment Obligation as a Liability, and (ii)
amend clause (C)(iv)(b) of the definition of Permitted Acquisitions such that
only acquisitions after October 25, 2001, excluding the acquisition of the
Wapella pipeline system, be included in the aggregate $50,000,000 limitation.
The undersigned Lender hereby consents to the treatment of the Subject
Acquisition as if it were a Permitted Acquisition, and to the exclusion of the
Contingent Payment Obligation as a Liability, 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 Subject Acquisition.
(b) Administrative Agent and each Lender shall have received any
updated or revised business and/or financial projections with respect to
the assets and operations to be acquired pursuant to the Subject
Acquisition, and, except for (i) adjustments in the event of the exercise
of the First Refusal Rights, or (ii) revisions accompanied by a
corresponding purchase price adjustment, no such projection shall
materially and adversely differ from those projections previously delivered
to Administrative Agent and Lenders.
(c) All American, as acquirer, shall have received an environmental
indemnity with respect to individual claims greater than $200,000 ("Covered
Claims") as follows: (i) 50% of Covered Claims which in the aggregate
exceed $2,000,000 but do not exceed $6,000,000, and (ii) 100% of Covered
Claims which in the aggregate exceed $6,000,000 but do not exceed
$30,000,000, to be effective for not less than two years following the
Subject 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 documentation relating to the Subject Acquisition documents and all
other related documents as Administrative Agent may request.
(e) The cash portion of the purchase price, together with associated
transaction costs and expenses, shall not exceed $160,000,000, plus the
Contingent Payment Obligation; provided, in the event of the exercise of
the First Refusal Rights, the cash portion of the purchase price, together
with associated transaction costs and expenses, shall not exceed
$127,000,000, plus the Contingent Payment Obligation.
(f) Both immediately prior to and immediately following the
consummation of the Subject 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) All American shall have delivered Security Documents pursuant to
Section 6.14 of the Agreement with respect to the assets acquired pursuant
to the Subject Acquisition, provided, with respect to those assets
constituting undivided interests in joint venture pipeline assets or
general partnership interests requiring the consent or approval of third
parties to the delivery of such Security Documents, All American shall use
its commercially reasonable best efforts, as determined by Administrative
Agent, to deliver such Security Documents with respect to such assets.
The undersigned Lender hereby consents to amending clause (C)(iv)(b) of the
definition of "Permitted Acquisition" in its entirety to read as follows:
(b) if the total purchase price of any such acquisition exceeds $5,000,000,
then the aggregate of the total purchase prices (including any assumed
Indebtedness) for all such acquisitions from October 25, 2001 through the
US Maturity Date does not exceed $50,000,000 (which amount, for the
avoidance of doubt, excludes acquisitions described in the preceding clause
(iv)(a)), excluding (x) the acquisition of the Wapella pipeline system, and
(y) any acquisition otherwise expressly consented to by the requisite
Lenders prescribed by Section 10.1(a).
The undersigned Lender hereby consents to amending Section 10.5(c)(iv) in
its entirety to read as follows:
(iv) Each assignee Canadian Revolver Lender shall be a financial
institution that is (i) not a non-resident of Canada for the purposes of
the Income Tax Act (Canada); or (ii) an "authorized foreign bank" as
defined in section 2 of the Bank Act (Canada) and in subsection 248(1) of
the Income Tax Act (Canada), that is not subject to the restrictions and
requirements referred to in subsection 524(2) of the Bank Act (Canada) and
which will receive all amounts paid or credited to it under its Canadian
Revolver Loans and Canadian Revolver Note in respect of its "Canadian
banking business" for the purposes of paragraph 212(13.3)(a) of the Income
Tax Act (Canada).
The effectiveness of this Amendment shall be conditioned upon the
contemporaneous effectiveness of an amendment to the Marketing Credit Agreement
on substantially identical terms and shall become effective upon (i) consent of
Majority Lenders, (ii) acceptance hereof by Borrower, and (iii) payment of a
$5,000 consent fee to (i) each commercial bank that is a Lender and (ii) each
institutional fund family with one or more funds that are Lenders. Please
execute a copy of this letter in the space provided below to evidence your
consent to the foregoing and fax a copy to the Administrative Agent (c/o Xxxxx
Xxxxx) at 000-000-0000 by 5:00 p.m., Monday, October 29th.
Thank you for your assistance on such short notice.
FLEET NATIONAL BANK, Administrative Agent
By: /s/ Xxxxxxxx Xxxxx
------------------------------------------
Xxxxxxxx Xxxxx, Managing Director
We hereby consent to the foregoing
First Union National Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
Bank of American, N.A.
By: /s/ Xxxxxx X. XxXxxx
---------------------------------
Name: Xxxxxx X. XxXxxx
Title: Managing Director
Bank One, N.A.
By: /s/ Xxxxxxx Xxxxxxxxx-Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx-Xxxxx
Title: First Vice President
Fortis Capital Corp.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
U.S. Bank National Association
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Bank of Scotland
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Xxxxx Fargo Bank (Texas)
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: Vice President
The Bank of Nova Scotia
By: /s/ M. D. Xxxxx
---------------------------------
Name: M. D. Xxxxx
Title: Agent
Credit Agricole Indosuez
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: FVP, Manager
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: VP, Credit Analysis
Toronto Dominion (Texas), Inc.
By: /s/ Xxx Xxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
Southwest Bank of Texas, N.A.
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------------
Name: A. Xxxxxxx Xxxxxxx
Title: Senior Vice President
Union Bank of California, N.A.
By: /s/ Xxxxxxx Octerberg
---------------------------------
Name: Xxxxxxx Octerberg
Title: Senior Vice President
Comerica Bank-Texas
By: /s/ X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Corporate Bank Net Officer
Xxxxxx Financial, Inc.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BNP Paribas
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Director
Xxxxxx Financial Canada, Ltd.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
The Toronto-Dominion Bank
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President - Corporate Credit
Bank of America Canada
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Corporate Investment Banking
BNP Paribas (Canada)
By: /s/ Xxxx XxXxxxx
---------------------------------
Name: Xxxx XxXxxxx
Title: Vice President, Energy & Project Finance
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director, Energy & Project Finance
Xxxxxx Xxxxxxx Prime Income Trust
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Director
Emerald Orchard, Limited
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney-in-Fact
Allstate Life Insurance Company
By:
---------------------------------
Name:
Title:
Variable Insurance Products Fund II:
Asset Manager Portfolio
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
Variable Insurance Products Fund II:
Asset Manager Portfolio
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
Fidelity Advisor Series II:
Fidelity Advisor Floating Rate High Income Fund
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
* The above Fidelity entities own the Term Loan
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
First Union Institutional Debt Management, Inc. ("IDM")
In its individual capacity and as Collateral Manager
on behalf of the investment funds under its management
as listed in Annex A hereto
Annex A
As of date of this Agreement, IDM serves as Collateral
Manager on behalf of the following funds:
.. ELC (Cayman) Ltd 1999-III
.. ELC (Cayman) Ltd 2000-I
.. APEX (IDM) CDO I, Ltd.
.. XXXXX CLO Ltd. 2000-1
Monument Capital Ltd.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
New Alliance Global CDO Limited
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Carlyle High Yield Partners II, Ltd.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Carlyle High Yield Partners III, Ltd.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Winged Foot Funding Trust
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
K2H CNC LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
First Dominion Funding
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Jupiter Funding Trust
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
Olympic Funding Trust, Series 1999-1
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
First Dominion Funding II
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Franklin CLO I, Limited
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
K2H Pondview LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
Muirfield Trading LLC
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
Franklin CLO II, Limited
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
K2H ING-1 LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H ING-2 LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H ING-3 LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H Concord LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H Crescent-2 LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H Crescent-3 LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
The Sumitomo Trust & Banking Co., Ltd.
New York Branch
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
Xxx Xxxxxx
Senior Income Trust
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
K2H Waterside LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H Highland-2 LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
K2H Pamco LLC
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
Archimedes Funding III, Ltd
By: ING Capital Advisors, LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Balanced High Yield Fund II, Ltd.
By: ING Capital Advisors, LLC,
as Asset Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
The ING Capital Senior Secured
High Income Holdings Fund, Ltd
By: ING Capital Advisors, LLC,
as Investment Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ORYX CLO, LTD.
By: ING Capital Advisors, LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Swiss Life US Rainbow Limited
By: ING Capital Advisors, LLC,
as Investment Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SEQUILS-ING I (HBDGM), Ltd.
By: ING Capital Advisors, LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
PLAINS MARKETING, L.P., US Borrower
ALL AMERICAN PIPELINE, L.P., Guarantor
By: Plains Marketing GP Inc., General Partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Exec. Vice President
PLAINS MARKETING CANADA, L.P., Canadian Revolver Borrower
By: PMC (Nova Scotia) Company, General Partner
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx, Exec. Vice President
PMC (NOVA SCOTIA) COMPANY, Term Borrower
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P., Guarantor
By: Plains AAP, L.P., General Partner
By: Plains All American GP LLC, its general partner
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx, Exec. Vice President
CONSENT AND AGREEMENT
The undersigned hereby consents to the provisions of this Amendment and the
transactions contemplated herein and hereby (i) acknowledges and agrees that any
and all indebtedness, liabilities or obligations arising under or in connection
with the Notes are Obligations and are secured indebtedness under, and are
secured by, each and every Security Document to which it is a party, (ii) re-
pledges, re-grants and re-assigns a security interest in and lien on all of its
assets described as collateral in any Security Document, (iii) ratifies and
confirms its Guaranty dated May 4, 2001 made by it for the benefit of
Administrative Agent and Lenders, and (iv) expressly acknowledges and agrees
that the undersigned guarantees all indebtedness, liabilities and obligations
arising under or in connection with any and all Notes, pursuant to the terms of
such Guaranty, and agrees that its obligations and covenants thereunder are
unimpaired hereby and shall remain in full force and effect.
PLAINS MARKETING CANADA LLC
By: Plains Marketing, L.P., its sole member
By: Plains Marketing GP Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx, Exec. Vice President
