EXHIBIT 10.4
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[Letter of Credit and Hedged Inventory Facility]
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT [Letter of Credit
and Hedged Inventory Facility] (this "Amendment") dated as of the 6th day of
September, 2001, by and among PLAINS MARKETING, L.P. ("Borrower"), ALL AMERICAN
PIPELINE, L.P. and PLAINS ALL AMERICAN PIPELINE, L.P., as guarantors, FLEET
NATIONAL BANK, as 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 [Letter
of Credit and Hedged Inventory Facility] dated as of May 4, 2001 (as amended,
supplemented, or restated 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 Third Amendment to Amended and
Restated Credit Agreement [Letter of Credit and Hedged Inventory
Facility].
"Amendment Documents" means this Amendment.
"Credit Agreement" means the Original Agreement as amended
hereby.
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ARTICLE II. -- Amendments
(S) 2.1. Definitions. The table set forth in the definition of
"Applicable Leverage Level" in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
Applicable
Leverage Level Leverage Ratio
-------------- ----------------
Level I greater than or equal to 4.50 to 1.0
Level II greater than or equal to 4.25 to 1.0
but less than 4.50 to 1.0
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
Level VI greater than or equal to 2.25 to 1.0
but less than 3.00 to 1.0
Level VII less than 2.25 to 1.0
All references to "Level VIII" (and all corresponding data) in the tables
set forth in the definitions of "Base Rate Margin", "Commitment Fee Rate",
"Letter of Credit Fee Rate" and "LIBOR Rate Margin" in Section 1.1 of the
Original Agreement are hereby deleted.
The definition of "Permitted Investments" set forth in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Permitted Investments" means:
(a) Cash Equivalents,
(b) Investments described in the Disclosure Schedule,
(c) Investments by Plains MLP or any of its Subsidiaries in any Wholly
Owned Subsidiary of Plains MLP which is either Borrower or a Guarantor,
(d) 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 (d) minus any amounts received on such
Investments (excluding dividends thereon) shall not at any time exceed the
Dollar Equivalent of $5,000,000), and
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(e) Permitted Acquisitions.
(S) 2.2. Indebtedness. The reference to "$630,000,000" set forth in
Section 7.1(e) of the Original Agreement is hereby amended to refer instead to
"$830,000,000", and clause (5) of Section 7.1(g) of the Original Agreement is
hereby amended in its entirety to read as follows:
(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 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; excluding from such reduction amount an
amount equal to twenty-five percent (25%) of the aggregate original
principal amount of the Term-B Loans (as defined in the Revolver
Agreement);
(S) 2.3. Debt to Capital Ratio. Section 7.14 of the Original
Agreement is hereby amended in its entirety to read as follows:
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, 0.70 to 1.0 at any time; and
(ii) from and after December 31, 2002, 0.65 to 1.0 at any time."
(S) 2.4. Open Position. The reference to "$5,000,000" set forth in
Section 7.15(a)(iii) of the Original Agreement is hereby amended to refer
instead to "$12,500,000".
ARTICLE III. -- Conditions of Effectiveness
(S) 3.1. Effective Date. This Amendment shall become effective as of
the date first written above, when and only when:
(i) Administrative Agent shall have received, at Administrative
Agent's office (A) a counterpart of this Amendment executed and delivered
by Borrower, Plains MLP, All American and Majority Lenders, and (B) a
contemporaneous amendment to the Revolver Agreement, amending (I) certain
financial covenants on the same terms and conditions set forth herein, and
(II) various other provisions therein consistent with the amendments set
forth herein, in form and substance acceptable to Administrative Agent,
executed and delivered by such Persons so as to make such amendment
effective,
(ii) in consideration hereof, Borrower shall have paid to
Administrative Agent for the account of each Lender executing and
delivering this Amendment an amendment fee
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in immediately available funds equal to one-twentieth of one percent
(0.05%) of each such Lender's Percentage Share of the Maximum Facility
Amount; and
(iii) Administrative Agent shall have additionally received all of the
following documents, each document (unless otherwise indicated) being dated
the date of receipt thereof by Administrative Agent, duly authorized,
executed and delivered, and in form and substance satisfactory to
Administrative Agent:
(A) Officer's Certificate. 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 date thereof, and
(B) Supporting Documents. Such supporting documents as
Administrative Agent may reasonably request.
ARTICLE IV. -- Representations and Warranties
(S) 4.1. Representations and Warranties of Plains MLP and Borrowers.
In order to induce Administrative Agent and Lenders to enter into this
Amendment, Plains MLP and Borrowers 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 each other Amendment Document, to the extent a
party thereto, and each 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 action necessary to authorize the
execution and delivery of this Amendment and each other Amendment Document,
to the extent a party thereto, and to authorize the performance of their
respective obligations hereunder.
(c) The execution and delivery by each Restricted Person of
this Amendment and each other Amendment Document, to the extent a party
thereto, the performance by each Restricted Person of its respective
obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict
with any provision of any Law or of the organizational 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 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 Tribunal or third party
is required in connection with the execution and delivery by any Restricted
Person of this Amendment or any other Amendment Document, or to consummate
the transactions contemplated hereby and thereby.
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(d) When duly executed and delivered, each of this Amendment
and each other Amendment Document, and each of the Loan Documents, as
amended hereby and thereby, will be a legal and binding instrument and
agreement of each Restricted Person to the extent a party thereto,
enforceable in accordance with its terms, (subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency and similar laws applicable
to creditors' rights generally).
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 or any other Amendment Document, 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 and the other Amendment Documents 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
LC Obligations or the Notes are Obligations and are secured indebtedness under,
are guarantied by, 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 and re-
guarantees all Obligations under the Credit Agreement.
(S) 5.3. Ratification of Intercreditor Agreement. Each Lender hereby
acknowledges and confirms that all Obligations under the Credit Agreement, as
amended hereby, and the "Obligations" under the Marketing Credit Agreement, as
amended on the date hereof, shall be and shall remain subject to the terms and
entitled to the benefits of the Intercreditor Agreement.
(S) 5.4. 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 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 agreements and covenants of, such Restricted Person under
this Amendment and under the Credit Agreement.
(S) 5.5. Loan Documents. This Amendment and each other Amendment
Document is a Loan Document, and all provisions in the Credit Agreement
pertaining to Loan Documents apply hereto.
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(S) 5.6. 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) 5.7. 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.
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
BORROWER: PLAINS MARKETING, L.P.
By: Plains Marketing GP Inc., General Partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx, Exec. Vice President
GUARANTORS: ALL AMERICAN PIPELINE, L.P.
By: Plains Marketing GP Inc., General Partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx, Exec. Vice President
PLAINS ALL AMERICAN PIPELINE, L.P.
By: Plains AAP, L.P., General Partner
By: Plains All American LLC, General Partner
By: /s/ Xxxx Xxxxxx
------------------
Xxxx Xxxxxx, Exec. Vice President
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LENDER PARTIES: FLEET NATIONAL BANK,
Administrative Agent, LC Issuer and Lender
By: /s/ Xxxxxxxx Xxxxx
---------------------
Xxxxxxxx Xxxxx, Managing Director
FIRST UNION NATIONAL BANK, Lender
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx. Vice Pres.
BANK OF AMERICA, N.A., Lender
By:
---------------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO),
Lender
By:
---------------------------------------
Name:
Title:
FORTIS CAPITAL CORP., Lender
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, Lender
By:
---------------------------------------
Name:
Title:
BANK OF SCOTLAND, Lender
By:
---------------------------------------
Name:
Title:
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XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, Lender
By:
---------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, Lender
By:
---------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ, Lender
By:
---------------------------------------
Name:
Title:
By:
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Name:
Title:
TORONTO DOMINION (TEXAS), INC., Lender
By:
---------------------------------------
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., Lender
By:
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Name:
Title:
UNION BANK OF CALIFORNIA, N.A., Lender
By:
---------------------------------------
Name:
Title:
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COMERICA BANK-TEXAS, Lender
By:
---------------------------------------
Name:
Title:
BNP PARIBAS, Lender
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
GUARANTY BANK, Lender
By:
---------------------------------------
Name:
Title:
SIEMENS FINANCIAL SERVICES INC., Lender
By:
---------------------------------------
Name:
Title:
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CONSENT AND AGREEMENT
Each of 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
PMC (NOVA SCOTIA) COMPANY
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx, Exec. Vice President
PLAINS MARKETING CANADA, L.P.
By: PMC (Nova Scotia) Company,
General Partner
By: Xxxx Xxxxxx
------------------------------------------
Xxxx Xxxxxx, Exec. Vice President
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