FIRST AMENDMENT TO SECOND RESTATED
CREDIT AGREEMENT
THIS FIRST
AMENDMENT TO SECOND RESTATED CREDIT AGREEMENT (this
“Amendment”) dated as of the 27th day of October, 2009,
is by and among PLAINS MARKETING, L.P. (“Borrower”),
BANK OF AMERICA, N.A., as Administrative Agent, BNP Paribas, as
Syndication Agent, SOCIETE GENERALE, as Documentation Agent, Banc
of America Securities LLC (“BAS”), BNP Paribas
(“BNPP”) and Societe Generale, as joint lead arrangers,
BAS and BNPP, as joint bookrunners, and the Lenders party
hereto.
WHEREAS, Borrower,
Administrative Agent and certain of the Lenders entered into that
certain Second Restated Credit Agreement dated as of
November 6, 2008 (the “Original Agreement”) for
the purposes and consideration therein expressed; and
WHEREAS, Borrower,
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, 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
§ 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.
§ 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 § 1.2.
“
Amendment ” means this First Amendment to Second
Restated Credit Agreement.
“ Credit
Agreement ” means the Original Agreement as amended
hereby.
“ Exiting
Lender ” means any Person that is a Lender to the
Original Agreement immediately prior to the execution of this
Amendment and not a signatory hereto as a Lender.
“ New
Lender ” means each Lender a party hereto, other than any
Person that is a Lender to the Original Agreement immediately prior
to the execution of this Amendment.
§ 2.1.
Definitions . The definition of “Maturity Date”
set forth in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
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“
Maturity Date ” means October 26, 2010, unless
terminated earlier in accordance with Section 8.1 or
Section 10.10.
§ 2.2.
Summary Collateral Report . The phrase “On the
fifteenth (15 th )
day of each month (or the next succeeding Business Day, if the 15th
is not a Business Day) and together with each Borrowing
Notice” commencing in the first line of Section 6.2(d)
of the Original Agreement is hereby amended and restated as
follows: “No earlier than the fifteenth (15
th ) day of each month, and no later than the
eighteenth (18 th )
day of each month (or the next succeeding Business Day, if the
18 th
is not a Business Day), and together
with any Borrowing Notice or LC Application that, after the making
of the Loans or the issuance of the Letter of Credit requested
thereby, would result in the Total Outstanding Amount exceeding
ninety percent (90%) of the Sale Value of Financed Hedged Eligible
Inventory (or Hedged Value, as to Financed Hedged Eligible
Inventory not subject to sales contracts), described on the
most-recently delivered Summary Collateral
Report,”.
§ 2.3.
Amendments . Clause (v) of Section 10.1(a) of the
Original Agreement is hereby amended by inserting “or any
other provision hereof that affects the pro rata treatment of
Lenders” after “required thereby”.
§ 2.4.
Schedules and Exhibits . The Pricing Grid attached as
Schedule I to the Original Agreement is hereby amended in its
entirety to read as set forth on Schedule I attached hereto.
The list of Currently Approved Persons and Facilities attached as
Schedule V to the Original Agreement is hereby amended in its
entirety to read as set forth on Schedule V attached hereto.
The forms of Borrowing Notice and Summary Collateral Report
attached as Exhibits B and G to the Original Agreement are hereby
amended in their entirety to read as set forth on Exhibits B and G
attached hereto.
§ 2.5.
Commitments . The Lender Schedule attached as
Schedule II to the Original Agreement is hereby amended in its
entirety to read as set forth on Schedule II attached hereto.
In connection therewith, Borrower, Administrative Agent and Lenders
shall make adjustments to the Outstanding Amount of Loans and LC
Obligations owing to each Lender (but not any interest accrued
thereon prior to the date hereof or any accrued commitment or
letter of credit fees under the Credit Agreement prior to the date
hereof), including the borrowing of additional Loans and the
repayment of Loans plus all applicable accrued interest, fees and
expenses as shall be necessary to repay in full all Exiting
Lenders, and to provide for Loans and LC Obligations owing to each
Lender in the amount of its Percentage Share of all Loans and LC
Obligations as of the date hereof, and each Lender shall be deemed
to have made an assignment of its Commitment and outstanding Loans
and LC Obligations owing to such Lender, and assumed Commitments
and outstanding Loans and LC Obligations owing to other Lenders, as
may be necessary to effect the foregoing, but in no event shall any
such adjustment of any Eurodollar Loans (i) constitute a
payment or prepayment of all or a portion of any Eurodollar Loans
or (ii) entitle any Lender to any reimbursement under
Section 3.7 of the Credit Agreement. Borrower, Administrative
Agent and each Lender hereby (x) consents to all reallocations
and assignments of the Commitments and Loans and LC Obligations
effected pursuant to the foregoing, (y) acknowledges and
agrees that such reallocations and assignments shall be deemed
effective as if such reallocations and assignments were evidenced
by Assignments and Assumptions among Lenders delivered pursuant to
Section 10.5(b) of the Credit Agreement, and (z) agrees
that Lenders shall make full cash settlement of such reallocations
and assignments through the Administrative Agent, as the
Administrative Agent may direct or approve, such that after
giving
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effect to such
settlement, each Lender’s Commitment and Outstanding Amount
of Loans and LC Obligations shall be as set forth above.
§ 2.6. New
Lenders; Exiting Lenders . Upon their execution and as of the
effectiveness hereof, each New Lender shall be a party to the
Credit Agreement and shall have the rights and obligations of a
Lender thereunder and each Exiting Lender shall cease to be a
Lender and shall be released from its obligations under the Credit
Agreement.
ARTICLE III. — Conditions
of Effectiveness
§ 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
counterpart of this Amendment executed and delivered by Borrower
and Lenders;
(ii) Borrower
shall have paid all commitment, facility, agency and other fees and
expenses required to be paid to Administrative Agent or any Lender
pursua
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