EXHIBIT 10.23
[MARKETING]
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
the 24th day of September, 1999, by and among PLAINS MARKETING, L.P.
("Borrower"), ALL AMERICAN PIPELINE, L.P. ("All American"), PLAINS ALL AMERICAN
PIPELINE, L.P. ("Plains MLP"), and BANKBOSTON, N.A., as Administrative Agent (in
such capacity, "Administrative Agent"), and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent, and
Lenders entered into that certain Amended and Restated Credit Agreement dated as
of November 17, 1998 (as amended, restated, or supplemented to the date hereof,
the "Original Agreement") for the purposes and consideration therein expressed,
pursuant to which Lenders became obligated to make and made loans to Borrower as
therein provided; and
WHEREAS, Borrower, All American, Plains MLP, Administrative Agent, and
Lenders desire to amend the Original Agreement for the purposes described
herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I. -- Definitions and References
(S) 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this Second Amendment to Credit Agreement.
"Credit Agreement" means the Original Agreement as amended hereby.
ARTICLE II. -- Amendments and Consent
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(S) 2.1. Amendment.
(a) Clause (e) of the definition of "Permitted Investments" in Section 1.1
of the Original Agreement is hereby amended to read as follows:
"(e) Investments directly or indirectly by Restricted Persons in
Unrestricted Subsidiaries in an aggregate amount not to exceed, at any one
time outstanding, the sum of (i) $50,000,000, plus (ii) the amount of net
proceeds from sales by Plains MLP of additional Partnership Interests (as
such term is defined in the Partnership Agreement) made after September 15,
1999."
(b) The clause in Section 7.3(b)(v)(A) of the Original Agreement reading
"long-term unsecured and unenhanced debt obligations rated AA or Aa2 or better,"
is hereby amended to read in its entirety as follows:
"long-term unsecured and unenhanced debt obligations rated A or A2 or
better,"
(S) 2.2. Consent. Administrative Agent and each Lender hereby (i) approve
the establishment by Borrower of a brokerage account with Cargill Investor
Services, Inc. pursuant to Section 7.3(b) of the Credit Agreement and (ii)
permit the execution, delivery, and performance by Borrower of Hedging Contracts
with Enron Capital & Trade Resource Corp.
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of the
date first above written when and only when Administrative Agent shall have
received, at Administrative Agent's office: (a) a counterpart of this Amendment
executed and delivered by Borrower, All American, Plains MLP, Administrative
Agent, and Majority Lenders, and (b) a certificate of a duly authorized officer
of General Partner to the effect that all of the representations and warranties
set forth in Article IV hereof are true and correct at and as of the time of
such effectiveness.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrower. In
order to induce Administrative Agent and Lenders to enter into this Amendment,
Plains MLP and Borrower represent and warrant to Administrative Agent and each
Lender that:
(a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that such representation and
warranty was made as of a specific date.
(b) Each Restricted Person is duly authorized to execute and deliver
this Amendment, and Borrower is and will continue to be duly authorized to
borrow and perform its obligations under the Credit Agreement. Each
Restricted Person has duly taken all corporate action necessary to
authorize the execution and delivery of this Amendment and to authorize the
performance of their respective obligations hereunder.
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(c) The execution and delivery by each Restricted Person of this
Amendment, the performance by each Restricted Person of its respective
obligations hereunder, and the consummation of the transactions
contemplated hereby, do not and will not conflict with any provision of
law, statute, rule or regulation or of the constituent documents of any
Restricted Person, or of any material agreement, judgment, license, order
or permit applicable to or binding upon any Restricted Person, or result in
the creation of any lien, charge or encumbrance upon any assets or
properties of any Restricted Person, except in favor of Administrative
Agent for the benefit of Lenders and other Permitted Liens. Except for
those which have been duly obtained, no consent, approval, authorization or
order of any court or governmental authority or third party is required in
connection with the execution and delivery by any Restricted Person of this
Amendment or to consummate the transactions contemplated hereby.
(d) When this Amendment has been duly executed and delivered, each of
the Loan Documents, as amended by this Amendment, will be a legal and
binding instrument and agreement of each Restricted Person, 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 to general principles of equity).
ARTICLE V. -- Miscellaneous
(S) 5.1. Ratification of Agreements. The Original Agreement, as hereby
amended, is hereby ratified and confirmed in all respects. The Loan Documents
(including but not limited to each Guaranty), as they may be amended or affected
by this Amendment, are hereby ratified and confirmed in all respects by each
Restricted Person to the extent a party thereto. Any reference to the Credit
Agreement in any Loan Document shall be deemed to refer to this Amendment also.
The execution, delivery and effectiveness of this Amendment 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.
(S) 5.2. Ratification of Security Documents. Restricted Persons,
Administrative Agent, and Lenders each acknowledge and agree that any and all
indebtedness, liabilities or obligations arising under or in connection with the
Notes are Obligations and are secured indebtedness under, and are secured by,
each and every Security Document to which any Restricted Person is a party. Each
Restricted Person hereby re-pledges, re-grants and re-assigns a security
interest in and lien on every asset of the such Restricted Person described as
Collateral in any Security Document.
(S) 5.3. Survival of Agreements. All representations, warranties,
covenants and agreements of the Restricted Persons herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making or granting of each Loan, and shall further
survive until all of the Obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by any
Restricted Person hereunder or under the Credit Agreement to Administrative
Agent or any Lender shall be deemed to constitute representations and warranties
by, or agreements and covenants of, such Restricted Person under this Amendment
and under the Credit Agreement.
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(S) 5.4. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
(S) 5.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY
AND PERFORMANCE.
(S) 5.6. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PLAINS MARKETING, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
ALL AMERICAN PIPELINE, L.P.
By: PLAINS ALL AMERICAN INC.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
BANKBOSTON, N.A.,
Administrative Agent, LC Issuer and Lender
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
Director
ING (U.S.) CAPITAL LLC, Lender
By:
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Director
BANK OF SCOTLAND, Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
COMERICA BANK-TEXAS, Lender
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
DEN NORSKE BANK ASA, Lender
By:
--------------------------------------
Name:
Title:
By:
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Name:
Title:
FIRST UNION NATIONAL BANK, Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
HIBERNIA NATIONAL BANK, Lender
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
MEESPIERSON CAPITAL CORP., Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
U.S. BANK, NATIONAL ASSOCIATION, Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., Lender
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Vice President
