EX-10.36 5 dex1036.txt FOURTH AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.36 TO: The Lenders under the Amended and Restated Credit Agreement (LETTER OF CREDIT AND HEDGED INVENTORY FACILITY) dated as of May 4, 2001, as amended and in effect through the Third Amendment thereto (the "Agreement"), 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 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. US Borrower is seeking consent to the Subject Acquisition, including the exclusion of the Contingent Payment Obligation as a Liability. 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 effectiveness of this Amendment shall be conditioned upon the contemporaneous effectiveness of an amendment to the Revolver 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 each Lender (unless such Lender shall have received such consent fee pursuant to the amendment to the Revolver Agreement). 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 Terry Ronan) at 617-434-3652 by 5:00 p.m., Monday, October 29th. Thank you for your assistance on such short notice. FLEET NATIONAL BANK, Administrative Agent By: /s/ Terrence Ronan ----------------------------------------- Terrence Ronan, Managing Director We hereby consent to the foregoing First Union National Bank By: /s/ Robert R. Wetteroff -------------------------------------- Name: Robert R. Wetteroff Title: Senior Vice President Bank of America, N.A. By: /s/ Ronald E. McKaig -------------------------------------- Name: Ronald E. McKaig Title: Managing Director Bank One NA By: /s/ Charles Kingswell-Smith -------------------------------------- Name: Charles Kingswell-Smith Title: First Vice President Fortis Capital Corp. By: /s/ Darrell W. Holley -------------------------------------- Name: Darrell W. Holley Title: Managing Director By: /s/ Deirdre Sanborn -------------------------------------- Name: Deirdre Sanborn Title: Vice President U.S. Bank, National Association By: /s/ Monte E. Deckerd -------------------------------------- Name: Monte E. Deckerd Title: Vice President Bank of Scotland By: /s/ Joseph Fratus -------------------------------------- Name: Joseph Fratus Title: Vice President The Bank of Nova Scotia By: /s/ M. D. Smith -------------------------------------- Name: M. D. Smith Title: Agent Wells Fargo Bank (Texas) By: /s/ John Lane -------------------------------------- Name: John Lane Title: Vice President Toronto Dominion (Texas), Inc. By: /s/ Jim Bridwell -------------------------------------- Name: Jim Bridwell Title: Vice President Credit Agricole Indosuez By: /s/ Brian Knezeak -------------------------------------- Name: Brian Knezeak Title: FVP, Manager By: /s/ Michael D. Willis -------------------------------------- Name: Michael D. Willis Title: VP, Credit Analysis Union Bank of California, N.A. By: /s/ Randall Osterberg -------------------------------------- Name: Randall Osterberg Title: Senior Vice President Southwest Bank of Texas, N.A. By: /s/ A. Stephen Kennedy -------------------------------------- Name: A. Stephen Kennedy Title: Senior Vice President BNP Paribas By: /s/ Edward K. Chin -------------------------------------- Name: Edward K. Chin Title: Director By: /s/ Keith Cox -------------------------------------- Name: Keith Cox Title: Director Comerica Bank-Texas By: /s/ Huma Vadgama -------------------------------------- Name: Huma Vadgama Title: Corporate Banking Officer Octagon Investment Partners IV, Ltd. By: Octagon Credit Investors, LLC as collateral manager By: /s/ Michael B. Nechamkin -------------------------------------- Name: Michael B. Nechamkin Title: Portfolio Manager Captiva III Finance Ltd (Acct. 275), as advised by Pacific Invesment Management Company, LLC By: /s/ David Dyer -------------------------------------- Name: David Dyer Title: Director Captiva IV Finance Ltd. (Acct. 275), as advised by Pacific Investment Management Company, LLC By: /s/ David Dyer -------------------------------------- Name: David Dyer Title: Director Royalton Company (Acct 280) By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Bedford CDO, Limited (Acct. 1276) By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Delano Company (Acct. 274) By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Addison CDO, Limited (Acct. 1279) By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Jissekikun Funding, Ltd. (Acct 1288) By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Balboa CDO I, Limited By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Sequils-Magnum, Ltd. By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President San Joaquin CDO I Limited By: Pacific Investment Management Company, LLC, as its Investment Advisor By: /s/ Mohan V. Phansalkar -------------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Highland Loan Funding V Ltd. By: Highland Capital Management, L.P. as Collateral Manager By: /s/ Mark Okada -------------------------------------- Name: Mark Okada, CFV Title: Executive Vice President Pilgrim America High Income Investments Inc. Ltd. By: ING Pilgrim Investments, Inc. as its investment manager By: /s/ Charles E. LeMieux -------------------------------------- Name: Charles E. LeMieux, CFA Title: Vice President TCW Select Loan Fund, Limited By: TCW Advisors, Inc. as its Collateral Manager By: /s/ Richard F. Kurth -------------------------------------- Name: Richard F. Kurth Title: Vice President By: /s/ Mark L. Gold -------------------------------------- Name: Mark L. Gold Title: Managing Director Flagship CLO 2001-1 By: Flagship Capital Management, Inc. By: /s/ James T. Anderson -------------------------------------- Name: James T. Anderson Title: Managing Director Flagship CLO II By: /s/ James T. Anderson -------------------------------------- Name: James T. Anderson Title: Attorney in Fact ML CLO XII Pilgrim America (Cayman) Ltd. By: ING Pilgrim Investments, Inc. as its investment manager By: /s/ Charles E. LeMieux -------------------------------------- Name: Charles E. LeMieux, CFA Title: Vice President Octagon Investment Partners II, LLC By: Octagon Credit Investors, LLC as sub-investment manager By: /s/ Michael B. Nechamkin -------------------------------------- Name: Michael B. Nechamkin Title: Portfolio Manager Pilgrim Prime Rate Trust By: ING Pilgrim Investments, Inc. as its investment manager By: /s/ Charles E. LeMieux -------------------------------------- Name: Charles E. LeMieux, CFA Title: Vice President Pilgrim Senior Income Fund By: ING Pilgrim Investments, Inc. as its investment manager By: /s/ Charles E. LeMieux -------------------------------------- Name: Charles E. LeMieux, CFA Title: Vice President Octagon Investment Partners III, Ltd. By: Octagon Credit Investors, LLC as Portfolio Manager By: /s/ Michael B. Nechamkin -------------------------------------- Name: Michael B. Nechamkin Title: Portfolio Manager Siemans Financial Services, Inc. By: /s/ Frank Amodio -------------------------------------- Name: Frank Amodio Title: Vice President-Credit Guaranty Bank By: /s/ Jim R. Hamilton --------------------------------- Name: Jim R. Hamilton Title: Senior Vice President, Regional Manager ML CLO XX Pilgrim America (Cayman) Ltd. By: ING Pilgrim Investments, LLC as its investment manager By: /s/ Charles E. LiMieux --------------------------------- Name: Charles E. LiMieux, CFA Title: Vice President Pilgrim CLO 1999-1 Ltd. By: ING Pilgrim Investments, LLC as its investment manager By: /s/ Charles E. LiMieux --------------------------------- Name: Charles E. LiMieux, CFA Title: Vice President Sequils Pilgrim-1 Ltd. By: ING Pilgrim Investments, LLC as its investment manager By: /s/ Charles E. LiMieux --------------------------------- Name: Charles E. LiMieux, CFA Title: Vice President Maplewood (Cayman) Ltd. By: Mass Mutual Life Insurance Co., as Investment Manager By: /s/ Steven J. Katz --------------------------------- Name: Steven J. Katz Title: Second Vice President and Associate General Counsel Term Loan Lender Massachusetts Mutual Life Insurance Company By: /s/ Steven J. Katz --------------------------------- Name: Steven J. Katz Title: Second Vice President and Associate General Counsel Term Loan Lender SAAR Holdings CDO Limited By: Mass Mutual Life Insurance Co., as Collateral Manager By: /s/ Steven J. Katz --------------------------------- Name: Steven J. Katz Title: Second Vice President and Associate General Counsel Term Loan Lender Persens CDO I, Limited By: Mass Mutual Life Insurance Co., as Portfolio Manager By: /s/ Steven J. Katz --------------------------------- Name: Steven J. Katz Title: Second Vice President and Associate General Counsel Term Loan Lender Somers CDO, Limited By: Mass Mutual Life Insurance Co., as Collateral Manager By: /s/ Steven J. Katz --------------------------------- Name: Steven J. Katz Title: Second Vice President and Associate General Counsel Term Loan Lender Simsbury CLO, Limited By: Mass Mutual Life Insurance Co. as Collateral Manager By: /s/ Steven J. Katz -------------------------------------- Name: Steven J. Katz Title: Second Vice President Suffield CLO, Limited By: David L. Babson & Co. as Collateral Manager By: /s/ Mary Ann McCarthy -------------------------------------- Name: Mary Ann McCarthy Title: Managing Director Term Loan Lender Bill & Melinda Gates Foundation By: David L. Babson & Company Inc. as Investment Advisers By: /s/ Mary Ann McCarthy -------------------------------------- Name: Mary Ann McCarthy Title: Managing Director Term Loan Lender [Letter of Credit and Hedged Inventory Credit Agreement] PLAINS MARKETING, L.P., Borrower ALL AMERICAN PIPELINE, L.P., Guarantor By: Plains Marketing GP Inc., General Partner By: /s/ Phil Kramer -------------------------------------- Phil Kramer, 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/ Phil Kramer -------------------------------------- Phil Kramer, Exec. Vice President 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/ Phil Kramer -------------------------------------- Phil Kramer, Exec. Vice President PMC (NOVA SCOTIA) COMPANY By: /s/ Phil Kramer --------------------------------------------- Phil Kramer, Exec. Vice President PLAINS MARKETING CANADA, L.P. By: PMC (Nova Scotia) Company, General Partner By: /s/ Phil Kramer --------------------------------------------- Phil Kramer, Exec. Vice President