EXHIBIT 10.20


 




 





 


364-DAY CREDIT AGREEMENT


 


 


PLAINS ALL AMERICAN PIPELINE, L.P., as Borrower,


 


 


FLEET NATIONAL BANK, as Administrative Agent,


 


 


WACHOVIA BANK, NATIONAL ASSOCIATION and


BANK ONE, NA


as Co-Syndication Agents,


 


 


BANK OF AMERICA, N.A. and


FORTIS CAPITAL CORP.,


as Co-Documentation Agents,


 


 


FLEET SECURITIES, INC., as Lead Arranger and Book Manager,


 


 


and CERTAIN FINANCIAL INSTITUTIONS, as Lenders


 


 


$125,000,000 364-Day Revolving Credit Facility


 


 


November 21, 2003




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I - Definitions and References

  	
   

  
	
   

  	
  Section
  1.1.  Defined Terms

  	
   

  
	
   

  	
  Section
  1.2.  Exhibits and Schedules;
  Additional Definitions

  	
   

  
	
   

  	
  Section
  1.3.  Amendment of Defined Instruments

  	
   

  
	
   

  	
  Section
  1.4.  References and Titles

  	
   

  
	
   

  	
  Section
  1.5.  Calculations and Determinations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II - The Loans

  	
   

  
	
   

  	
  Section
  2.1.  Commitments to Lend; Notes

  	
   

  
	
   

  	
  Section
  2.2.  Requests for Loans

  	
   

  
	
   

  	
  Section
  2.3.  Continuations and Conversions of
  Existing Loans

  	
   

  
	
   

  	
  Section
  2.4.  Use of Proceeds

  	
   

  
	
   

  	
  Section
  2.5.  Interest Rates and Fees

  	
   

  
	
   

  	
  Section
  2.6.  Intentionally Omitted

  	
   

  
	
   

  	
  Section
  2.7.  Intentionally Omitted

  	
   

  
	
   

  	
  Section
  2.8.  Optional Prepayments

  	
   

  
	
   

  	
  Section
  2.9.  Mandatory Prepayments.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III - Payments to Lenders

  	
   

  
	
   

  	
  Section
  3.1.  General Procedures

  	
   

  
	
   

  	
  Section
  3.2.  Capital Reimbursement

  	
   

  
	
   

  	
  Section
  3.3.  Increased Cost of LIBOR Loans

  	
   

  
	
   

  	
  Section
  3.4.  Notice; Change of Applicable
  Lending Office

  	
   

  
	
   

  	
  Section
  3.5.  Availability

  	
   

  
	
   

  	
  Section
  3.6.  Funding Losses

  	
   

  
	
   

  	
  Section
  3.7.  Reimbursable Taxes

  	
   

  
	
   

  	
  Section
  3.8.  Replacement of Lenders.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV - Conditions Precedent to Lending

  	
   

  
	
   

  	
  Section
  4.1.  Documents to be Delivered

  	
   

  
	
   

  	
  Section
  4.2.  Additional Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V - Representations and Warranties

  	
   

  
	
   

  	
  Section
  5.1.  No Default

  	
   

  
	
   

  	
  Section
  5.2.  Organization and Good Standing

  	
   

  
	
   

  	
  Section
  5.3.  Authorization

  	
   

  
	
   

  	
  Section
  5.4.  No Conflicts or Consents

  	
   

  
	
   

  	
  Section
  5.5.  Enforceable Obligations

  	
   

  
	
   

  	
  Section
  5.6.  Initial Financial Statements

  	
   

  
	
   

  	
  Section
  5.7.  Other Obligations and
  Restrictions.

  	
   

  
	
   

  	
  Section
  5.8.  Full Disclosure

  	
   

  
	
   

  	
  Section
  5.9.  Litigation

  	
   

  
	
   

  	
  Section
  5.10.  ERISA Plans and Liabilities

  	
   

  
	
   

  	
  Section
  5.11.  Compliance with Permits,
  Consents and Law

  	
   

  
	
   

  	
  Section
  5.12.  Environmental Laws

  	
   

  



 


i

















 


	
   

  	
  Section
  5.13.  Borrower’s Subsidiaries

  	
   

  
	
   

  	
  Section
  5.14.  Title to Properties

  	
   

  
	
   

  	
  Section
  5.15.  Government Regulation

  	
   

  
	
   

  	
  Section
  5.16.  Insider

  	
   

  
	
   

  	
  Section
  5.17.  Solvency

  	
   

  
	
   

  	
  Section
  5.18.  Not a “Reportable Transaction”

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI - Affirmative Covenants

  	
   

  
	
   

  	
  Section
  6.1.  Payment and Performance

  	
   

  
	
   

  	
  Section
  6.2.  Books, Financial Statements and
  Reports.

  	
   

  
	
   

  	
  Section
  6.3.  Other Information and
  Inspections

  	
   

  
	
   

  	
  Section
  6.4.  Notice of Material Events

  	
   

  
	
   

  	
  Section
  6.5.  Maintenance of Existence,
  Qualifications and Assets

  	
   

  
	
   

  	
  Section
  6.6.  Payment of Taxes, etc.

  	
   

  
	
   

  	
  Section
  6.7.  Insurance

  	
   

  
	
   

  	
  Section
  6.8.  Compliance with Agreements and
  Law

  	
   

  
	
   

  	
  Section
  6.9.  Guaranties of Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII - Negative Covenants

  	
   

  
	
   

  	
  Section
  7.1.  Subsidiary Indebtedness

  	
   

  
	
   

  	
  Section
  7.2.  Limitation on Liens

  	
   

  
	
   

  	
  Section
  7.3.  Limitation on Mergers

  	
   

  
	
   

  	
  Section
  7.4.  Limitation on New Businesses

  	
   

  
	
   

  	
  Section
  7.5.  Transactions with Affiliates

  	
   

  
	
   

  	
  Section
  7.6.  Limitation on Distributions

  	
   

  
	
   

  	
  Section
  7.7.  Restricted Contracts

  	
   

  
	
   

  	
  Section
  7.8.  Debt Coverage Ratio

  	
   

  
	
   

  	
  Section
  7.9.  Interest Coverage Ratio

  	
   

  
	
   

  	
  Section
  7.10.  Unrestricted Subsidiaries

  	
   

  
	
   

  	
  Section
  7.11.  No Negative Pledges

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII - Events of Default and Remedies

  	
   

  
	
   

  	
  Section
  8.1.  Events of Default

  	
   

  
	
   

  	
  Section
  8.2.  Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX - Administrative Agent

  	
   

  
	
   

  	
  Section
  9.1.  Appointment and Authority

  	
   

  
	
   

  	
  Section
  9.2.  Exculpation, Administrative
  Agent’s Reliance, Etc.

  	
   

  
	
   

  	
  Section
  9.3.  Credit Decisions

  	
   

  
	
   

  	
  Section
  9.4.  Indemnification

  	
   

  
	
   

  	
  Section
  9.5.  Rights as Lender

  	
   

  
	
   

  	
  Section
  9.6.  Sharing of Set-Offs and Other
  Payments

  	
   

  
	
   

  	
  Section
  9.7.  Investments

  	
   

  
	
   

  	
  Section
  9.8.  Benefit of Article IX

  	
   

  
	
   

  	
  Section
  9.9.  Resignation

  	
   

  
	
   

  	
  Section
  9.10.  Other Agents

  	
   

  



 


ii

















 


	
  ARTICLE X - Miscellaneous

  	
   

  
	
   

  	
  Section
  10.1.  Waivers and Amendments;
  Acknowledgments

  	
   

  
	
   

  	
  Section
  10.2.  Survival of Agreements;
  Cumulative Nature

  	
   

  
	
   

  	
  Section
  10.3.  Notices

  	
   

  
	
   

  	
  Section
  10.4.  Payment of Expenses; Indemnity

  	
   

  
	
   

  	
  Section
  10.5.  Joint and Several Liability;
  Parties in Interest; Assignments; Replacement Notes

  	
   

  
	
   

  	
  Section
  10.6.  Confidentiality

  	
   

  
	
   

  	
  Section
  10.7.  Governing Law; Submission to
  Process

  	
   

  
	
   

  	
  Section
  10.8.  Limitation on Interest

  	
   

  
	
   

  	
  Section
  10.9.  Right of Offset

  	
   

  
	
   

  	
  Section
  10.10.  Termination; Limited Survival

  	
   

  
	
   

  	
  Section
  10.11.  Severability

  	
   

  
	
   

  	
  Section
  10.12.  Counterparts

  	
   

  
	
   

  	
  Section
  10.13.  Waiver of Jury Trial, Punitive
  Damages, etc.

  	
   

  



 


iii

















 


	
  Schedules
  and Exhibits:

  
	
   

  
	
  Schedule 1 -
  Lender Schedule

  
	
  Schedule 2 -
  Disclosure Schedule

  
	
  Schedule 3 -
  Pricing Grid

  
	
   

  
	
  Exhibit A -
  Note

  
	
  Exhibit B -
  Borrowing Notice

  
	
  Exhibit C -
  Continuation/Conversion Notice

  
	
  Exhibit D
  -  Certificate Accompanying Financial
  Statements

  
	
  Exhibit E-1
  - Opinion of In-House Counsel for Restricted Persons

  
	
  Exhibit E-2
  - Opinion of Fulbright & Jaworski L.L.P., Counsel for Restricted Persons

  
	
  Exhibit E-3
  - Opinion of Bennett Jones, Canadian Counsel for Restricted Persons

  
	
  Exhibit F -
  Assignment and Acceptance Agreement

  



 


iv

















 


364-DAY CREDIT AGREEMENT


 


 


THIS 364-DAY CREDIT AGREEMENT is made as of
November 21, 2003, by and among PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware
limited partnership (“Borrower”), FLEET NATIONAL BANK, as administrative
agent (in such capacity, “Administrative Agent”), WACHOVIA BANK,
NATIONAL ASSOCIATION and BANK ONE, NA, as co-syndication agents (in such
capacity, “Co-Syndication Agents”), BANK OF AMERICA, N.A. and FORTIS
CAPITAL CORP., as co-documentation agents (in such capacity, “Co-Documentation
Agents”), and FLEET SECURITIES, INC., as lead arranger and book manager
(in such capacity, “Lead Arranger and Book Manager”) and the
Lenders referred to below.  In
consideration of the mutual covenants and agreements contained herein the
parties hereto agree as follows:


 


W I T N E S S E T H


 


In consideration of the mutual covenants and
agreements contained herein and in consideration of the loans which may
hereafter by made by Lenders to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE I
- Definitions and References


 


Section 1.1.  Defined Terms.  As used in this Agreement, each of the
following terms has the meaning given to such term in this Section 1.1 or in
the sections and subsections referred to below:


 


“Acquisition Period” means the period
beginning, at the election of Borrower, with the funding date of the purchase
price for a Specified Acquisition and ending on the earliest of (a) the
third following Fiscal Quarter end, (b) Borrower’s receipt of proceeds of a
Specified Equity Offering; and (c) Borrower’s election in writing to terminate
such Acquisition Period (provided, at the time of such election, the
Debt Coverage Ratio shall not, on a pro forma basis, exceed 4.50 to 1.00); provided,
however, if the Debt Coverage Ratio exceeds 4.50 to 1.00 at the end of
the Fiscal Quarter ending next following such funding date, then the
Acquisition Period shall be deemed to have commenced as of such funding date; provided,
further, during any Acquisition Period, no additional Acquisition Period
shall commence, nor shall such Acquisition Period be extended, by any
subsequent Specified Acquisition until the current Acquisition Period shall have
expired and Borrower shall be in compliance with Section 7.8(ii).


 


“Administrative Agent” means Fleet
National Bank, as Administrative Agent hereunder, and its successors in such
capacity.


 


“Affiliate” means, as to any Person,
each other Person that directly or indirectly (through one or more
intermediaries or otherwise) controls, is controlled by, or is under common
control with, such Person.  A Person
shall be deemed to be “controlled by” any other Person if such other Person
possesses, directly or indirectly, power to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.


 

















 


“Agreement” means this Credit
Agreement.


 


“All American” means All American
Pipeline, L.P., a Texas limited partnership.


 


“Applicable Lending Office” means, for
each Lender and for each Type of Loan, the “Lending Office” of such Lender (or
of an Affiliate of such Lender) designated for such Type of Loan on the Lender
Schedule or such other office of such Lender (or an Affiliate of such Lender)
as such Lender may from time to time specify to Administrative Agent and
Borrower by written notice in accordance with the terms hereof as the office by
which its Loans of such Type are to be made and maintained.


 


“Applicable Margin” means, as to any
Type of Loan,  the percent per annum set
forth on the Pricing Grid as the “Applicable Margin” for such Type of Loan,
based on the Applicable Rating Level in effect on such date.  Changes in the Applicable Margin will occur
automatically without prior notice as changes in the Applicable Rating Level
occur.  Administrative Agent will give
notice promptly to Borrower and Lenders of changes in the Applicable Margin.


 


“Applicable Rating Level” means for
any day, the level set forth below that corresponds to the PAA Debt Rating by
the Ratings Agencies applicable on such day; provided, in the event the
PAA Debt Rating by the Ratings Agencies differs by one level, the higher PAA
Debt Rating shall apply; provided  further, in the event the PAA
Debt Rating by the Ratings Agencies differs by more than one level, the PAA
Debt Rating one level above the lower PAA Debt Rating shall apply; provided,
notwithstanding the foregoing, the Applicable Rating Level for the period from
the date hereof through and including February 21, 2004 shall be Level
III.  As used in this definition, “3”
means a rating equal to or more favorable than and “<“ means a rating less
favorable than.


 




	
  Rating Level

  	
   

  	
  S&P

  	
   

  	
  Moody’s

  	
   

  
	
  Level I

  	
   

  	
  > BBB+

  	
   

  	
  > Baa1

  	
   

  
	
  Level II

  	
   

  	
  BBB

  	
   

  	
  Baa2

  	
   

  
	
  Level III

  	
   

  	
  BBB-

  	
   

  	
  Baa3

  	
   

  
	
  Level IV

  	
   

  	
  < BBB-

  	
   

  	
  < Baa3

  	
   

  






 


If either of the Rating Agencies
shall not have in effect a PAA Debt Rating or if the rating system of either of
the Rating Agencies shall change, or if either of the Rating Agencies shall
cease to be in the business of rating corporate debt obligations, Borrower and
Majority Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
Rating Agency, but until such an agreement shall be reached, the Applicable
Rating Level shall be based only upon the PAA Debt Rating by the remaining
Rating Agency.


 


2

















 


“Base Rate” means the higher of (i)
the variable per annum rate of interest so designated from time to time by
Administrative Agent as its “prime rate”, or (ii) the Federal Funds Rate plus
one-half percent (0.5%) per annum.  The
“prime rate” is a reference rate and does not necessarily represent the lowest
or best rate being charged to any customer. 
Changes in the Base Rate resulting from changes in the “prime rate”
shall take place immediately without notice or demand of any kind.


 


“Base Rate Loan” means a Loan to
Borrower which does not bear interest at a rate based upon the LIBOR Rate.


 


“Borrower” means Plains All American
Pipeline, L.P., a Delaware limited partnership.


 


“Borrowing” means a borrowing of new
Loans of a single Type pursuant to Section 2.2 or a Continuation or Conversion
of existing Loans into a single Type (and, in the case of LIBOR Loans, with the
same Interest Period) pursuant to Section 2.3.


 


“Borrowing
Notice” means a written or telephonic request, or a written confirmation,
made by a Borrower which meets the requirements of Section 2.2.


 


“Business
Day” means any day, other than a Saturday, Sunday or day which shall be in
the Commonwealth of Massachusetts a legal holiday or day on which banking
institutions are required or authorized to close.  Any Business Day in any way relating to LIBOR Loans (such as the
day on which an Interest Period begins or ends) must also be a day on which
commercial banks settle payments in London.


 


“Capital
Lease” means a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a
liability in accordance with GAAP.


 


“Capital
Lease Obligation” means, with respect to any Person and a Capital Lease,
the amount of the obligation of such Person as the lessee under such Capital
Lease which would, in accordance with GAAP, appear as a liability on a balance
sheet of such Person.


 


“Cash and
Carry Purchases” means purchases of Petroleum Products for physical storage
or in storage or in transit in pipelines which has been hedged by either a
NYMEX contract, an OTC contract or a contract for physical delivery.


 


“Cash
Equivalents” means Investments in:


 


(a)  marketable obligations, maturing within 12
months after acquisition thereof, issued or unconditionally guaranteed by the
United States of America or the federal government of Canada or an
instrumentality or agency thereof and entitled to the full faith and credit of
the United States of America or the federal government of Canada, as the case
may be;


 


(b)  demand deposits and time deposits (including
certificates of deposit) maturing within 12 months from the date of deposit
thereof, (i) with any office of any Lender or (ii) with a domestic office
of any national, state or provincial bank or trust company which is organized
under the Laws of the United States of America or any state therein, or the
federal government of Canada or any province therein, which has capital,
surplus and undivided profits of at least


 


3

















 


$500,000,000, and whose long term certificates of deposit are rated at
least Aa3 by Moody’s or AA- by S&P;


 


(c)  repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
subsection (a) above entered into with (i) any Lender or (ii) any other
commercial bank meeting the specifications of subsection (b) above;


 


(d)  open market commercial paper, maturing
within 270 days after acquisition thereof, which are rated at least P-1 by
Moody’s or A-1 by S&P; and


 


(e)  money market or other mutual funds
substantially all of whose assets comprise securities of the types described in
subsections (a) through (d) above.


 


“Change of
Control” means the occurrence of any of the following events:


 


(i)                                     Qualifying
Directors cease for any reason to constitute collectively a majority of the
members of the board of directors of GP LLC (the “Board”) then in office;


 


(ii)                                  GP
LLC shall cease to be, directly or indirectly, the sole legal and beneficial
owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of all of the general partner interests (including all
securities which are convertible into general partner interests) of General
Partner.


 


(iii)                               General
Partner shall cease to be, directly or indirectly, the sole legal and
beneficial owner (as defined above) of all of the general partner interests
(including all securities which are convertible into general partner interests)
of Borrower; or


 


(iv)                              Neither
General Partner nor Borrower shall continue to be, directly or indirectly, the
sole legal and beneficial owner of the general partner interest in Plains
Marketing and All American.


 


As used herein, “Qualifying
Director” means (i) any Person designated by any Qualifying Owner as its
representative on the Board, (ii) so long as Qualifying Owners own a majority
of the ownership interests of GP LLC entitling the holders thereof to vote in
elections for directors of GP LLC, any Person elected by a majority of such
owners of GP LLC entitled to vote thereon, and (iii) the chief executive
officer of GP LLC, and “Qualifying Owner” means Plains Resources Inc.,
Kayne Anderson Investment Management, EnCap Investments LLC, Sable Minerals, or
any Affiliate of any of the foregoing.


 


“Co-Agent”
shall have the meaning given that term in Section 9.10.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time, together
with all rules and regulations promulgated with respect thereto.


 


“Commitment”
means $125,000,000, as may be reduced from time to time pursuant to Section
2.5(b).  Each Lender’s Commitment shall
be the amount set forth on the Lender Schedule.


 


4

















 


“Commitment
Fee Rate” means, on any day, the rate per annum set forth on the Pricing
Grid as the “Commitment Fee Rate” based on the Applicable Rating Level on such
date.  Changes in the applicable
Commitment Fee Rate will occur automatically without prior notice as changes in
the Applicable Rating Level occur. 
Administrative Agent will give notice promptly to Borrower and Lenders
of changes in the Commitment Fee Rate.


 


“Commitment
Period” means the period from and including the date hereof until the
Maturity Date (or, if earlier, the day on which the obligation of Lenders to
make Loans to Borrower hereunder pursuant to Section 2.1 has been terminated or
the day on which any of the Notes first becomes due and payable in full).


 


“Consolidated”
refers to the consolidation of any Person, in accordance with GAAP, with its
properly consolidated subsidiaries. 
References herein to a Person’s Consolidated financial statements,
financial position, financial condition, liabilities, etc. refer to the
consolidated financial statements, financial position, financial condition,
liabilities, etc. of such Person and its properly consolidated subsidiaries.


 


“Consolidated
EBITDA” means, for any period, the sum of (1) the Consolidated Net Income
during such period, plus (2) all interest expense that was deducted in
determining such Consolidated Net Income for such period, plus (3) all
income taxes (including any franchise taxes to the extent based upon net
income) that were deducted in determining such Consolidated Net Income, plus
(4) all depreciation, amortization (including amortization of good will and
debt issue costs) and other non-cash charges (including any provision for the
reduction in the carrying value of assets recorded in accordance with GAAP)
which were deducted in determining such Consolidated Net Income, plus (5) up to
$20,000,000 of any cash payments and related payroll taxes made by Borrower
prior to June 30, 2004 pursuant to the Plains All American GP LLC 1998
Long-Term Incentive Plan as in effect on the date hereof in lieu of delivery of
units due certain holders of such Long-Term Incentive Plan, minus (6)
all non-cash items of income which were included in determining such
Consolidated Net Income.


 


“Consolidated
Funded Indebtedness” means as of any date, the sum of the following
(without duplication):  (i) the
outstanding principal amount of all Indebtedness which is classified as
“long-term indebtedness” on a consolidated balance sheet of Borrower and its
Consolidated Subsidiaries (excluding Unrestricted Subsidiaries) prepared as of
such date in accordance with GAAP (subject to year-end audit adjustments with
respect to non-year end periods) and any current maturities and other principal
amount in respect of such Indebtedness due within one year but which was
classified as “long-term indebtedness” at the creation thereof; (ii) the
outstanding principal amount of Indebtedness for borrowed money of Borrower and
its Consolidated Subsidiaries (excluding Unrestricted Subsidiaries) outstanding
under a revolving credit, term or similar agreement (and renewals and
extensions thereof); and (iii) the outstanding principal amount of Indebtedness
in respect of Capital Leases of Borrower and its Consolidated Subsidiaries
(excluding Unrestricted Subsidiaries); provided, however,
Consolidated Funded Indebtedness shall not, if otherwise applicable, include
(x) Indebtedness in respect of letters of credit, (y) Indebtedness incurred to
finance Cash and Carry Purchases or (z) margin deposits.


 


“Consolidated
Net Income” means, for any period, Borrower’s and its Subsidiaries’
(excluding Unrestricted Subsidiaries) gross revenues for such period, including
any cash dividends or distributions actually received from any other Person
during such period, minus


 


5

















 


Borrower’s and its Subsidiaries’ (excluding Unrestricted Subsidiaries)
expenses and other proper charges against income (including taxes on income, to
the extent imposed), determined on a Consolidated basis after eliminating
earnings or losses attributable to outstanding minority interests and excluding
the net earnings of any Person other than a Subsidiary in which Borrower or any
of its Subsidiaries (excluding Unrestricted Subsidiaries) has an ownership interest.  Consolidated Net Income shall not include
(i) any gain or loss from the sale of assets, (ii) any extraordinary gains or
losses, or (iii) any non-cash gains or losses resulting from mark to market
activity as a result of the implementation of SFAS 133 or EITF 98-10.  In addition, Consolidated Net Income shall
not include the cost or proceeds of purchasing or selling options which are
used to hedge future activity, until the period in which such hedged future activity
occurs.


 


“Consolidated
Tangible Net Worth” means the remainder of (i) all Consolidated assets, as
determined in accordance with GAAP, of Borrower and its Subsidiaries (excluding
Unrestricted Subsidiaries) minus (ii) the sum of (a) Borrower’s
Consolidated liabilities, as determined in accordance with GAAP, (b) the book
value of any equity interests in any of Borrower’s Subsidiaries (excluding
Unrestricted Subsidiaries) which equity interests are owned by a Person other
than Borrower or a Wholly Owned Subsidiary of Borrower; and (c) the net book
value of all assets that would be treated as intangible under GAAP, including
goodwill, trademarks, trade names and service marks.  The effect of any increase or decrease of net worth in any period
as a result of items of income or loss not reflected in the determination of
net income but reflected in the determination of comprehensive income (to the
extent provided under GAAP as in effect on the date hereof) shall be excluded
in determining Consolidated Tangible Net Worth.


 


“Contango
Credit Agreement” means that certain Uncommitted Senior Secured
Discretionary Contango Facility Credit Agreement of even date herewith among
Plains Marketing, Fleet National Bank, as administrative agent, and the lenders
named therein.


 


“Continue”,
“Continuation” and “Continued” shall refer to the continuation
pursuant to Section 2.3 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.


 


“Continuation/Conversion
Notice” means a written or telephonic request, or a written confirmation,
made by Borrower which meets the requirements of Section 2.3.


 


“Convert,
“Conversion” and “Convert” refers to a conversion pursuant to
Section 2.3 of one Type of Loan into another Type of Loan.


 


“Debt
Coverage Ratio” shall have the meaning given that term in Section 7.8.


 


“Default”
means any Event of Default and any default, event or condition which would,
with the giving of any requisite notices and the passage of any requisite
periods of time, constitute an Event of Default.


 


“Default
Rate” means, at the time in question, two percent (2%) per annum plus:


 


(a)  the LIBOR Rate plus the
Applicable Margin then in effect for each LIBOR Loan (up to the end of the
applicable Interest Period),


 


6

















 


(b)  the Base Rate plus the
Applicable Margin then in effect for each Base Rate Loan,


 


provided, however, the Default
Rate shall never exceed the Highest Lawful Rate.


 


“Default Rate Period” means (i) any
period during which an Event of Default, other than pursuant to Section 8.1 (a)
or (b), is continuing, provided that such period shall not begin until notice
of the commencement of the Default Rate has been given to Borrower by
Administrative Agent upon the instruction by Majority Lenders and (ii) any
period during which any Event of Default pursuant to Section 8.1 (a) or (b) is
continuing unless Borrower has been notified otherwise by Administrative Agent
upon the instruction by Majority Lenders.


 


“Disclosure
Schedule” means Schedule 2 hereto.


 


“Distribution”
means (a) any dividend or other distribution (whether in cash or other
property, but excluding dividends or other distributions payable in equity
interests in Borrower) with respect to any equity interest of Borrower, (b) any
payment (whether in cash or other property, but excluding dividends or other
distributions payable in equity interests in Borrower), including any sinking
fund or similar deposit, on account of the retirement, redemption, purchase,
cancellation, termination or other acquisition for value of any equity interest
of Borrower or (c) any other payment by Borrower to any holder of equity
interests of Borrower with respect to such equity interests held thereby other
than payments made with equity interests in Borrower.


 


“Dollars”
and “$” means the lawful currency of the United States of America,
except where otherwise specified.


 


“Eligible
Transferee” means a Person which either (a) is a Lender, or
(b) is consented to as an Eligible Transferee by Administrative Agent and,
so long as no Default or Event of Default is continuing, by Borrower, which
consents in each case will not be unreasonably withheld; provided no
Person organized outside the United States may be an Eligible Transferee if
Borrower (or, prior to the effectiveness of any such transfer, Borrower
notifies the Administrative Agent that any other Restricted Person) would be
required to pay withholding taxes on interest or principal owed to such Person.


 


“Environmental
Laws” means any and all Laws relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, together with all rules and regulations promulgated with respect
thereto.


 


“ERISA
Affiliate” means each Restricted Person and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control


 


7

















 


that, together with such Restricted Person, are treated as a single
employer under Section 414 of the Code.


 


“ERISA Plan”
means any employee pension benefit plan subject to Title IV of ERISA maintained
by any ERISA Affiliate with respect to which any Restricted Person has a fixed
or contingent liability.


 


“Event of
Default” has the meaning given to such term in Section 8.1.


 


“Existing
Agreements” means (i) that certain Second Amended and Restated Credit
Agreement [Revolving Credit Facility] dated July 2, 2002 among Plains Marketing
and certain Affiliates, Fleet National Bank, as administrative agent, and the
agents and lenders named therein, and (ii) that certain Second Amended and
Restated Credit Agreement [Letter of Credit and Hedged Inventory Facility]
dated July 2, 2003 among Plains Marketing and certain Affiliates, Fleet
National Bank, as administrative agent, and the agents and lenders named
therein.


 


“Federal
Funds Rate” means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/1000th of one percent) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate quoted to Administrative Agent on such day on such transactions as
determined by Administrative Agent.


 


“Fiscal
Quarter” means a three-month period ending on March 31, June 30, September
30 or December 31 of any year.


 


“Fiscal
Year” means a twelve-month period ending on December 31 of any year.


 


“GAAP”
means those generally accepted accounting principles and practices which are
recognized as such by the Financial Accounting Standards Board (or any
generally recognized successor) and which, in the case of Borrower and its
Consolidated Subsidiaries, are applied for all periods after the date hereof in
a manner consistent with the manner in which such principles and practices were
applied to the Initial Financial Statements. 
If any change in any accounting principle or practice is required by the
Financial Accounting Standards Board (or any such successor) in order for such
principle or practice to continue as a generally accepted accounting principle
or practice, all reports and financial statements required hereunder with
respect to Borrower or with respect to Borrower and its Consolidated
Subsidiaries may be prepared in accordance with such change, but all
calculations and determinations to be made hereunder may be made in accordance
with such change only after notice of such change is given to each Lender and
Majority Lenders agree to such change insofar as it affects the accounting of
Borrower or of Borrower and its Consolidated Subsidiaries.


 


8

















 


“General
Partner” means Plains AAP, L.P., a Delaware limited partnership, in its
capacity as the sole general partner of Borrower.


 


“GP LLC”
means Plains All American GP LLC, a Delaware limited liability company.


 


“Guarantors”
means, as of the date hereof, all of Borrower’s Subsidiaries, other than
3794865 Canada Ltd., Plains LPG Services GP LLC, Plains LPG Services, L.P. and
Atchafalaya Pipeline, L.L.C. and any other Person who has guaranteed some or
all of the Obligations and who has been accepted by Administrative Agent as a
Guarantor or any Subsidiary of Borrower which now or hereafter executes and
delivers a guaranty to Administrative Agent pursuant to Section 6.9.


 


“Hazardous
Materials” means any substances regulated under any Environmental Law,
whether as pollutants, contaminants, or chemicals, or as industrial, toxic or
hazardous substances or wastes, or otherwise.


 


“Highest
Lawful Rate” means, with respect to each Lender Party to whom Obligations
are owed, the maximum nonusurious rate of interest that such Lender Party is
permitted under applicable Law to contract for, take, charge, or receive with
respect to such Obligations.  All
determinations herein of the Highest Lawful Rate, or of any interest rate
determined by reference to the Highest Lawful Rate, shall be made separately
for each Lender Party as appropriate to assure that the Loan Documents are not
construed to obligate any Person to pay interest to any Lender Party at a rate
in excess of the Highest Lawful Rate applicable to such Lender Party.


 


“Indebtedness”
of any Person means each of the following:


 


(a)  its obligations for the repayment of
borrowed money,


 


(b)  its obligations to pay the deferred purchase
price of property or services (excluding trade account payables arising in the
ordinary course of business), other than contingent purchase price or similar
obligations incurred in connection with an acquisition and not yet earned or
determinable,


 


(c)  its obligations evidenced by a bond,
debenture, note or similar instrument,


 


(d)  its obligations, as lessee, constituting
principal under Capital Leases,


 


(e)  its direct or contingent reimbursement
obligations with respect to the face amount of letters of credit pursuant to
the applications or reimbursement agreements therefor,


 


(f)  its obligations for the repayment of
outstanding banker’s acceptances, whether matured or unmatured,


 


(g)  its obligations under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing if the obligation under such synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing is
considered indebtedness for borrowed money for tax purposes but is classified
as an operating


 


9

















 


lease in accordance with GAAP (excluding, to the extent included
herein, operating leases entered into in the ordinary course of business), or


 


(h)  its obligations under guaranties of any
obligations of any other Person described in the foregoing clauses (a) through
(g).


 


“Initial Financial
Statements” means (i) the audited Consolidated financial statements of
Borrower as of December 31, 2002, and (ii) the unaudited consolidating balance
sheet and income statement of Borrower as of September 30, 2003.


 


“Interest
Expense” means, with respect to any period, the sum (without duplication)
of the following (in each case, eliminating all offsetting debits and credits
between Borrower and its Subsidiaries (excluding Unrestricted Subsidiaries) and
all other items required to be eliminated in the course of the preparation of
Consolidated financial statements of Borrower and its Subsidiaries (excluding
Unrestricted Subsidiaries) in accordance with GAAP): (a) all interest and
commitment fees in respect of Indebtedness of Borrower or any of its Subsidiaries
(excluding Unrestricted Subsidiaries) (including imputed interest on Capital
Lease Obligations) which are accrued during such period and whether expensed in
such period or capitalized; plus (b) all fees in respect of letters of credit
issued for the account of Borrower or any of its Subsidiaries, which are
accrued during such period and whether expensed in such period or capitalized.


 


“Interest
Payment Date” means (a) with respect to each Base Rate Loan, the last
day of each March, June, September and December beginning December 31, 2003,
and (b) with respect to each LIBOR Loan, the last day of the Interest Period
that is applicable thereto and, if such Interest Period is six or nine months
in length, the dates specified by Administrative Agent which are approximately
three and six months (as appropriate) after such Interest Period begins;
provided that the last Business Day of each calendar month shall also be an
Interest Payment Date for each such Loan so long as any Event of Default exists
under Section 8.1(a) or (b).


 


“Interest
Period” means, with respect to each particular LIBOR Loan in a Borrowing,
the period specified in the Borrowing Notice or Continuation/Conversion Notice
applicable thereto, beginning on and including the date specified in such
Borrowing Notice or Continuation/Conversion Notice (which must be a Business
Day), and ending one, two, three, six or nine months (if nine months is
available for each Lender) thereafter (and, as to Loans, ending on a date less
than 30 days thereafter as may be specified by Borrower, if such lesser period
is available for each Lender), as Borrower may elect in such notice; provided
that:  (a) any Interest Period which
would otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day; (b) any Interest Period which begins on the last
Business Day in a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day in a calendar month; and (c) notwithstanding
the foregoing, no Interest Period may be selected for a Loan to Borrower that
would end after the Maturity Date.


 


“Investment”
means any investment made, directly or indirectly in any Person, whether by
acquisition of shares of capital stock, indebtedness or other obligations or
securities or by loan, advance, capital contribution or otherwise, and whether
made in cash, by the transfer of property or by any other means.


 


10

















 


“Law”
means any statute, law, regulation, ordinance, rule, treaty, judgment, order,
decree, permit, concession, franchise, license, agreement or other governmental
restriction of the United States or Canada or any state, province, or political
subdivision thereof or of any foreign country or any department, state,
province or other political subdivision thereof.


 


“Lender
Parties” means Administrative Agent and all Lenders.


 


“Lenders”
means each signatory hereto designated as a Lender, and the successors and
permitted assigns of each such party as holder of a Note.


 


“Lender
Schedule” means Schedule 1 hereto.


 


“Liabilities”
means, as to any Person, all indebtedness, liabilities and obligations of such
Person, whether matured or unmatured, liquidated or unliquidated, primary or
secondary, direct or indirect, absolute, fixed or contingent, and whether or
not required to be considered pursuant to GAAP.


 


“LIBOR Loan”
means a Loan that bears interest at a rate based upon the LIBOR Rate.


 


“LIBOR Rate”
means, as applicable to any LIBOR Loan within a Borrowing and with respect to
the related Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) as determined on the basis of offered
rates for deposits in Dollars, for a period of time comparable to such Interest
Period which appears on Telerate Page 3750 (or any successor page) as of 11:00
a.m. London time on the day that is two Business Days preceding the first day
of such LIBOR Loan; provided, however, if the rate described above does not
appear on the Telerate system on any applicable interest determination date,
the LIBOR Rate shall be the rate (rounded upwards as described above, if
necessary) for deposits in dollars for a period substantially equal to such
Interest Period on the Reuters Page “LIBOR” (or such other page as may replace
the LIBOR Page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London time), on the date that is two Business Days prior to the
beginning of such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBOR Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/1000 of 1%).  If both the
Telerate and Reuters system are unavailable, then the LIBOR Rate for that date will
be determined on the basis of the offered rates for deposits in Dollars for a
period of time comparable to such Interest Period which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) Business Days preceding the first day of such
LIBOR Loan as selected by Administrative Agent.  The principal London office of each of the four major London
banks will be requested to provide a quotation of its Dollar deposit offered
rate.  If at least two such quotations
are provided, the rate for that date will be the arithmetic mean of the
quotations.  If fewer than two
quotations are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in Dollars to leading European banks
for a period of time comparable to such Interest Period offered by major banks
in New York City at approximately 11:00 a.m. New York City time, on the day
that is two Business Days preceding the first day of such LIBOR Loan.  In the event that Administrative Agent is
unable to obtain any such quotation as provided above, it will be deemed that
the LIBOR Rate pursuant to such LIBOR Loan cannot be determined.  In the event that the Board of Governors of
the Federal Reserve


 


11

















 


System shall impose a Reserve Percentage with respect to LIBOR deposits
of any Lender, then for any period during which such Reserve Percentage shall
apply, the LIBOR Rate shall be equal to the amount determined above divided by
an amount equal to 1 minus the Reserve Percentage.  “Reserve Percentage” means the maximum aggregate reserve
requirement (including all basic, supplemental, marginal, special, emergency
and other reserves) which is imposed on member banks of the Federal Reserve
System against “Euro-currency Liabilities” as defined in
Regulation D.  Without limiting the
effect of the foregoing, the Reserve Percentage shall reflect any other
reserves required to be maintained by such member banks with respect to (a) any
category of liabilities which includes deposits by reference to which the LIBOR
Rate is to be determined, or (b) any category of extensions of credit or other
assets which include LIBOR Loans.  The
LIBOR Rate for any LIBOR Loan shall change whenever the Reserve Percentage changes.


 


“Lien”
means, with respect to any property or assets, any right or interest therein of
a creditor to secure Liabilities owed to it or any other arrangement with such
creditor which provides for the payment of such Liabilities out of such
property or assets or which allows such creditor to have such Liabilities
satisfied out of such property or assets prior to the general creditors of any
owner thereof, including any lien, mortgage, security interest, pledge,
deposit, production payment, rights of a vendor under any title retention or
conditional sale agreement or lease substantially equivalent thereto, tax lien,
mechanic’s or materialman’s lien, or any other charge or encumbrance for
security purposes, whether arising by Law or agreement or otherwise, but
excluding any right of offset which arises without agreement in the ordinary
course of business.  “Lien” also means
any filed financing statement, any registration of a pledge (such as with an
issuer of uncertificated securities), or any other arrangement or action which
would serve to perfect a Lien described in the preceding sentence, regardless
of whether such financing statement is filed, such registration is made, or
such arrangement or action is undertaken before or after such Lien exists.


 


“Loan
Documents” means this Agreement, the Notes, and all other agreements,
certificates, documents, instruments and writings at any time delivered in
connection herewith or therewith (exclusive of term sheets and commitment
letters).


 


“Loans”
means loans by Lenders to Borrower pursuant to Section 2.1.


 


“Majority
Lenders” means Lenders whose Percentage Shares equal or exceed fifty-one
percent (51%).


 


“Material
Adverse Change” means a material and adverse change, from the state of
affairs presented in the Initial Financial Statements or as represented or
warranted in any Loan Document, to (a) Borrower’s Consolidated financial
condition, (b) Borrower’s Consolidated operations, properties or prospects,
considered as a whole, (c) Borrower’s ability to timely pay its Obligations, or
(d) the enforceability of the material terms of any Loan Document.


 


“Maturity
Date” means November 20, 2004.


 


“Moody’s”
means Moody’s Investor Service, Inc., or its successor.


 


“Notes”
has the meaning given such term in Section 2.1 hereof.


 


12

















 


“Obligations”
means all Liabilities from time to time owing by any Restricted Person to any
Lender Party under or pursuant to any of the Notes or under or pursuant to any
guaranty of the obligations of Borrower or under the Loan Documents.  “Obligation” means any part of the
Obligations.


 


“PAA Debt
Rating” means the rating then in effect by a Rating Agency with respect to
the long term senior unsecured non-credit enhanced debt of Borrower.


 


“Percentage
Share” means the percentage shown as each Lender’s “Percentage Share” on
the Lender Schedule,


 


“Permitted
Lien” has the meaning given to such term in Section 7.2.


 


“Person”
means an individual, corporation, partnership, limited liability company,
association, joint stock company, trust or trustee thereof, estate or executor
thereof, unincorporated organization or joint venture, Tribunal, or any other
legally recognizable entity.


 


“Petroleum
Products” means crude oil, condensate, natural gas, natural gas liquids
(NGL’s), liquefied petroleum gases (LPG’s), refined petroleum products or any
blend thereof.


 


“Plains
Marketing” means Plains Marketing, L.P., a Delaware limited partnership.


 


“Pricing
Grid” means Schedule 3 attached hereto.


 


“Rating
Agency” means either S&P or Moody’s.


 


“Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect.


 


“Restricted
Person” means any of Borrower and each Subsidiary of Borrower, including
but not limited to Plains Marketing, All American, PMC (Nova Scotia) Company,
Plains Marketing Canada, L.P., and each Subsidiary of Plains Marketing, All
American, PMC (Nova Scotia) Company and Plains Marketing Canada, L.P., but
excluding, for the avoidance of doubt, Unrestricted Subsidiaries.


 


“Restriction
Exception” means (i) any applicable Law or any instrument governing
Indebtedness or equity interests, or any applicable Law or any other agreement
relating to any property, assets or operations of a Person whose capital stock
or other equity interests are acquired, in whole or part, by a Restricted
Person pursuant to an acquisition (whether by merger, consolidation,
amalgamation or otherwise), as such instrument or agreement is in effect at the
time of such acquisition (except with respect to Indebtedness incurred in
connection with, or in contemplation of, such acquisition), or such applicable
Law is then or thereafter in effect (as applicable), which is not applicable to
the acquiring Restricted Person, or the property, assets or operations of the
acquiring Restricted Person, other than the acquired Person, or the property,
assets or operations of such acquired Person or such acquired Person’s
Subsidiaries; provided that in the case of Indebtedness, the incurrence
of such Indebtedness is not prohibited hereunder, or (ii) provisions with
respect to the disposition or distribution of assets in joint venture
agreements or other similar agreements entered into in the ordinary course of
business.


 


13

















 


“S&P”
means Standard & Poor’s Ratings Group (a division of McGraw Hill, Inc.) or
its successor.


 


“Significant
Restricted Persons” means Borrower, PMC (Nova Scotia) Company, Plains
Marketing Canada, L.P., Plains Marketing, All American and Subsidiaries of
Borrower that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Exchange
Act of 1934 and the Securities Act of 1933, each as amended.


 


“Specified
Acquisition” means one or more acquisitions of assets or entities or
operating lines or divisions in any rolling 12-month period for an aggregate
purchase price of not less than $50,000,000.


 


“Specified
Equity Offering” means one or more issuances of equity by Borrower for aggregate
net cash proceeds of not less than fifty percent (50%) of the aggregate
purchase price of the Specified Acquisition.


 


“Subsidiary”
means, with respect to any Person, any corporation, association, partnership,
limited liability company, joint venture, or other business or corporate
entity, enterprise or organization which is directly or indirectly (through one
or more intermediaries) controlled or owned more than fifty percent by such
Person; provided, however, that no Unrestricted Subsidiary shall
be deemed a “Subsidiary” of any Restricted Person for purposes of any Loan
Document except as provided in Section 7.10.


 


“Termination
Event” means (a) the occurrence with respect to any ERISA Plan of (i) a
reportable event described in Sections 4043(c)(5) or (6) of ERISA or (ii) any
other reportable event described in Section 4043(c) of ERISA other than a
reportable event not subject to the provision for 30-day notice to the Pension
Benefit Guaranty Corporation pursuant to a waiver by such corporation under
Section 4043(a) of ERISA, or (b) the withdrawal of any ERISA Affiliate from an
ERISA Plan during a plan year in which it was a “substantial employer” as
defined in Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent
to terminate any ERISA Plan or the treatment of any ERISA Plan amendment as a
termination under Section 4041 of ERISA, or (d) the institution of proceedings
to terminate any ERISA Plan by the Pension Benefit Guaranty Corporation under
Section 4042 of ERISA, or (e) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan.


 


“Tribunal”
means any government, any arbitration panel, any court or any governmental
department, commission, board, bureau, agency or instrumentality of the United
States of America, the Dominion of Canada, or any state, province,
commonwealth, nation, territory, possession, county, parish, town, township,
village or municipality, whether now or hereafter constituted or existing.


 


“Type”
means, with respect to any Loans, the characterization of such Loans as Base
Rate Loans or LIBOR Loans.


 


“Unrestricted
Subsidiary” shall have the meaning given it in Section 7.10.


 


14

















 


“US/Canada
Credit Agreement” means that certain Credit Agreement [US/Canada] of even
date herewith among Borrower, PMC (Nova Scotia) Company, Plains Marketing
Canada, L.P., Fleet National Bank, as administrative agent, The Bank of Nova
Scotia, as Canadian administrative agent, and the lenders named therein.


 


“Wholly
Owned Subsidiary” means any Subsidiary of a Person, all of the issued and
outstanding stock, limited liability company membership interests, or
partnership interests of which (including all rights or options to acquire such
stock or interests) are directly or indirectly (through one or more
Subsidiaries) owned by such Person.


 


“Working
Capital Borrowings” has the meaning given to such term in Section 2.2(c)
hereof.


 


Section 1.2.  Exhibits and Schedules; Additional
Definitions.  All Exhibits and
Schedules attached to this Agreement are a part hereof for all purposes.


 


Section 1.3.  Amendment of Defined Instruments.  Unless the context otherwise requires or
unless otherwise provided herein the terms defined in this Agreement which
refer to a particular agreement, instrument or document also refer to and
include all renewals, extensions, modifications, amendments and restatements of
such agreement, instrument or document, provided that nothing contained in this
section shall be construed to authorize any such renewal, extension,
modification, amendment or restatement.


 


Section 1.4.  References and Titles.  All references in this Agreement to
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise.  Titles appearing at the beginning of any
subdivisions are for convenience only and do not constitute any part of such
subdivisions and shall be disregarded in construing the language contained in
such subdivisions.  The words “this
Agreement,” “this instrument,” “herein,” “hereof,” “hereby,” “hereunder” and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited.  The phrases “this section” and “this subsection” and similar
phrases refer only to the sections or subsections hereof in which such phrases
occur.  The word “or” is not exclusive,
and the word “including” (in its various forms) means “including without
limitation.”  Pronouns in masculine,
feminine and neuter genders shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa, unless the context otherwise requires. 
References to an “officer” or “officers” of the General Partner or any
Restricted Person shall mean and include officers of such Person or the
controlling management entity of such Person as provided in such Person’s
organizational documents, as applicable.


 


Section 1.5.  Calculations and Determinations.  All calculations under the Loan Documents of
interest chargeable with respect to LIBOR Loans and of fees shall be made on
the basis of actual days elapsed (including the first day but excluding the
last) and a year of 360 days.  All other
calculations of interest made under the Loan Documents shall be made on the
basis of actual days elapsed (including the first day but excluding the last)
and a year of 365 or 366 days, as appropriate. 
Each determination by a Lender Party of amounts to be paid under Article
III or any other matters which are to be determined hereunder by a Lender Party
(such as any LIBOR


 


15

















 


Rate, Business Day, Interest
Period, or Reserve Percentage) shall, in the absence of manifest error, be
conclusive and binding.  Unless
otherwise expressly provided herein or unless Majority Lenders otherwise consent
all financial statements and reports furnished to any Lender Party hereunder
shall be prepared and all financial computations and determinations pursuant
hereto shall be made in accordance with GAAP.


 


ARTICLE II
- The Loans


 


Section 2.1.  Commitments to Lend; Notes.  Subject to the terms and conditions hereof,
each Lender agrees to make Loans to Borrower upon Borrower’s request from time
to time during the Commitment Period, provided that (a) subject to
Sections 3.3, 3.4 and 3.6, all Lenders are requested to make Loans of the same
Type in accordance with their respective Percentage Shares and as part of the
same Borrowing, (b) after giving effect to such Loans, the aggregate
outstanding principal amount of the Loans does not exceed the Commitment determined
as of the date on which the requested Loans are to be made, and (c) after
giving effect to such Loans the Loans by each Lender does not exceed such
Lender’s Commitment.  The aggregate
amount of all Loans in any Borrowing must be equal to $2,000,000 or any higher
integral multiple of $250,000.  The
obligation of Borrower to repay to each Lender the aggregate amount of all
Loans made by such Lender to Borrower, together with interest accruing in
connection therewith, shall be evidenced by a single promissory note (herein
called such Lender’s “Note”) made by Borrower payable to the order of
such Lender in the form of Exhibit A with appropriate insertions.  The amount of principal owing on any
Lender’s Note at any given time shall be the aggregate amount of all Loans
theretofore made by such Lender to Borrower minus all payments of principal
theretofore received by such Lender on such Note.  Interest on each Note shall accrue and be due and payable as
provided herein and therein.  Each Note
shall be due and payable as provided herein and therein, and shall be due and
payable in full on the Maturity Date. 
Subject to the terms and conditions of this Agreement, Borrower may
borrow, repay, and reborrow under this Section 2.1.  Borrower may have no more than seven Borrowings
of LIBOR Loans outstanding at any time. 
All payments of principal and interest on the Loans made pursuant to
this Section 2.1 shall be made in Dollars.


 


Section 2.2.  Requests for Loans.  Borrower must give to Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of any
requested Borrowing.  Each such notice
constitutes a “Borrowing Notice” hereunder and must:


 


(a)  specify (A) the aggregate
amount of any such Borrowing and the date on which Base Rate Loans are to be
advanced, or (B) the aggregate amount of any such Borrowing of new LIBOR Loans,
the date on which such LIBOR Loans are to be advanced (which shall be the first
day of the Interest Period which is to apply thereto), and the length of the
applicable Interest Period;


 


(b)  be received by
Administrative Agent not later than 11:00 a.m., Boston, Massachusetts time, on
(i) the day on which any such Base Rate Loans are to be made, or (ii) the third
Business Day preceding the day on which any such LIBOR Loans are to be made;
and


 


16

















 


(c)  if any requested Borrowing
or portion thereof is to be utilized exclusively for working capital purposes
(such Borrowing or such portion being called a “Working Capital Borrowing”),
Borrower shall specify in the Borrowing Notice that such Borrowing or such
portion is a Working Capital Borrowing. 
In addition, any repayment of a Loan that is intended as a repayment of
all or any part of the outstanding amount of one or more Working Capital
Borrowings shall be so identified to Administrative Agent at the time of such
repayment.


 


Each such written request or
confirmation must be made in the form and substance of the “Borrowing Notice”
attached hereto as Exhibit B, duly completed. 
Each such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by Borrower as to the matters which are required
to be set out in such written confirmation. 
Upon receipt of any such Borrowing Notice, Administrative Agent shall
give each Lender prompt notice of the terms thereof.  If all conditions precedent to such new Loans have been met, each
Lender will on the date requested promptly remit to Administrative Agent at its
office in Boston, Massachusetts the amount of such Lender’s new Loan in
immediately available funds, and upon receipt of such funds, unless to its
actual knowledge any conditions precedent to such Loans have been neither met
nor waived as provided herein, Administrative Agent shall promptly make such
Loans available to Borrower.  Unless
Administrative Agent shall have received prompt notice from a Lender that such
Lender will not make available to Borrower such Lender’s new Loan,
Administrative Agent may in its discretion assume that such Lender has made such
Loan available to Administrative Agent in accordance with this section, and
Administrative Agent may if it chooses, in reliance upon such assumption, make
such Loan available to Borrower.  If and
to the extent such Lender shall not so make its new Loan available to
Administrative Agent, such Lender and Borrower severally agree to pay or repay
to Administrative Agent within three days after demand the amount of such Loan
together with interest thereon, for each day from the date such amount was made
available to Borrower until the date such amount is paid or repaid to
Administrative Agent, with interest at (i) the Federal Funds Rate, if such
Lender is making such payment, and (ii) the interest rate applicable at the
time to the other new Loans made on such date, if Borrower is making such
repayment.  If neither such Lender nor
Borrower pays or repays to Administrative Agent such amount within such
three-day period, Administrative Agent shall be entitled to recover from
Borrower, on demand in lieu of the interest provided for in the preceding
sentence, interest thereon at the Default Rate, calculated from the date such
amount was made available to Borrower. 
The failure of any Lender to make any new Loan to be made by it
hereunder shall not relieve any other Lender of its obligation hereunder, if
any, to make its new Loan, but no Lender shall be responsible for the failure
of any other Lender to make any new Loan to be made by such other Lender.  All Borrowings of Loans shall be advanced in
Dollars.


 


Section 2.3.  Continuations and Conversions of Existing
Loans.  Borrower may make the
following elections with respect to Loans already outstanding: (i) to Convert,
in whole or in part, Base Rate Loans to LIBOR Loans, (ii) to Convert, in whole
or in part, LIBOR Loans to Base Rate Loans on the last day of the Interest
Period applicable thereto, and (iii) to Continue, in whole or in part, LIBOR
Loans beyond the expiration of such Interest Period by designating a new
Interest Period to take effect at the time of such expiration.  In making such elections, Borrower may
combine existing Loans to Borrower made pursuant to separate Borrowings into
one new Borrowing or divide existing Loans to Borrower made pursuant to one
Borrowing into separate new Borrowings, provided that Borrower may have no more
than seven Borrowings of LIBOR Loans outstanding at any time.  To make any such election, Borrower must
give to


 


17

















 


Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of any such Conversion or Continuation of existing Loans,
with a separate notice given for each new Borrowing.  Each such notice constitutes a “Continuation/Conversion Notice”
hereunder and must:


 


(i)  specify the existing Loans which
are to be Continued or Converted;


 


(ii)  specify (A) the aggregate
amount of any Borrowing of Base Rate Loans into which such existing Loans are
to be Continued or Converted and the date on which such Continuation or
Conversion is to occur, or (B) the aggregate amount of any Borrowing of LIBOR
Loans into which such existing Loans are to be Continued or Converted,  the date on which such Continuation or
Conversion is to occur (which shall be the first day of the Interest Period
which is to apply to such LIBOR Loans), and the length of the applicable
Interest Period; and


 


(iii) be received by Administrative Agent not later than 11:00 a.m.
Boston, Massachusetts time, on (i) the day on which any such Continuation or
Conversion to Base Rate Loans is to occur, or (ii) the third Business Day
preceding the day on which any such Continuation or Conversion to LIBOR Loans
is to occur.


 


Each such written request or
confirmation must be made in the form and substance of the
“Continuation/Conversion Notice” attached hereto as Exhibit C, duly
completed.  Each such telephonic request
shall be deemed a representation, warranty, acknowledgment and agreement by
Borrower as to the matters which are required to be set out in such written
confirmation.  Upon receipt of any such
Continuation/Conversion Notice, Administrative Agent shall give each Lender
prompt notice of the terms thereof. 
Each Continuation/Conversion Notice shall be irrevocable and binding on
Borrower.  During the continuance of any
Default, Borrower may not make any election to Convert existing Loans into
LIBOR Loans or Continue existing Loans as LIBOR Loans beyond the expiration of
their respective and corresponding Interest Period then in effect.  If (due to the existence of a Default or for
any other reason) Borrower fails to timely and properly give any
Continuation/Conversion Notice with respect to a Borrowing of existing LIBOR
Loans at least three days prior to the end of the Interest Period applicable to
such LIBOR Loans, any such LIBOR Loans, to the extent not prepaid at the end of
such Interest Period, shall automatically be Converted into Base Rate Loans at
the end of such Interest Period.  No new
funds shall be repaid by Borrower or advanced by any Lender in connection with
any Continuation or Conversion of existing Loans pursuant to this section, and
no such Continuation or Conversion shall be deemed to be a new advance of funds
for any purpose; such Continuations and Conversions merely constitute a change
in the interest rate applicable to such already outstanding Loans.


 


Section 2.4.  Use of Proceeds.  Borrower shall use all Loans to finance
capital expenditures of any Restricted Person, provide working capital for
operations and for other general business purposes, including acquisitions.  In no event shall the funds from any Loans
be used directly or indirectly by any Person for personal, family, household or
agricultural purposes or for the purpose, whether immediate, incidental or
ultimate, of purchasing, acquiring or carrying any “margin stock” (as such term
is defined in Regulation U promulgated by the Board of Governors of the Federal
Reserve System) or to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock.  Borrower represents and


 


18

















 


warrants that it is not engaged
principally, or as one of its important activities, in the business of
extending credit to others for the purpose of purchasing or carrying such
margin stock.


 


Section 2.5.  Interest Rates and Fees.


 


(a)  Interest Rates.


 


(i)  Each Loan shall bear interest as follows:
(A) unless the Default Rate shall apply, each Base Rate Loan shall bear
interest on each day outstanding at the Base Rate plus the Applicable Margin in
effect on such day, and each LIBOR Loan shall bear interest on each day during
the related Interest Period at the related LIBOR Rate plus the Applicable
Margin in effect on such day, and (B) during a Default Rate Period, all Loans
shall bear interest on each day outstanding at the applicable Default Rate.


 


(ii)  If an Event of Default based upon Section
8.1(a), Section 8.1(b) or Section 8.1(h)(i), (h)(ii) or (h)(iii) exists
and the Loans are not bearing interest at the Default Rate, the past due
principal and past due interest shall bear interest on each day outstanding at
the applicable Default Rate.


 


(iii)  The interest rate shall change whenever the
applicable Base Rate, LIBOR Rate or Applicable Margin changes.  In no event shall the interest rate on any
Loan exceed the Highest Lawful Rate.


 


(b)  Commitment Fee; Reduction of Commitment.  In consideration of each Lender’s commitment
to make Loans to Borrower, Borrower will pay to Administrative Agent for the
account of each Lender a commitment fee determined on a daily basis equal to
the Commitment Fee Rate in effect on such day times such Lender’s Percentage
Share of the unused portion of the Commitment on each day during the Commitment
Period, determined for each such day by deducting from the amount of the Commitment
at the end of such day the aggregate outstanding principal amount of
Loans.  Such commitment fee shall be due
and payable in arrears on the last day of each Fiscal Quarter and at the end of
the Commitment Period.  Borrower shall
have the right from time to time to permanently reduce the Commitment, provided
that (A) notice of such reduction is given not less than 2 Business Days
prior to such reduction, (B) the resulting Commitment is not less than the
aggregate outstanding principal amount of the Loans, and (C) each partial
reduction shall be in an amount at least equal to $500,000 and in multiples of
$100,000 in excess thereof.


 


(c)  Administrative Agent’s Fees.  In addition to all other amounts due to
Administrative Agent under the Loan Documents, Borrower will pay fees to
Administrative Agent as described in the fee letter dated October 20, 2003
between Administrative Agent and Borrower.


 


Section 2.6.  Intentionally Omitted.


 


Section 2.7.  Intentionally Omitted.


 


Section 2.8.  Optional Prepayments.  Borrower may, upon three Business Days’
notice, as to LIBOR Loans, or same Business Day’s notice, as to Base Rate
Loans, to Administrative Agent (and Administrative Agent will promptly give
notice to the other Lenders) from time to time and without premium or penalty
prepay the Loans, in whole or in part, so long as the aggregate


 


19

















 


amounts of all partial prepayments of principal on the Loans equals
$2,500,000 or any higher integral multiple of $250,000.  Upon receipt of any such notice,
Administrative Agent shall give each Lender prompt notice of the terms
thereof.  Each prepayment of principal
of a Loan under this section shall be accompanied by all interest then accrued
and unpaid on the principal so prepaid. 
Any principal or interest prepaid pursuant to this section shall be in
addition to, and not in lieu of, all payments otherwise required to be paid
under the Loan Documents at the time of such prepayment.  Following notice by Borrower pursuant to the
foregoing, Borrower shall make such prepayment, and the prepayment amount
specified in such notice shall be due and payable, on the date specified in
such notice.


 


Section 2.9.  Mandatory Prepayments.  If at any time the aggregate outstanding
principal amount of the Loans exceeds the Commitment (whether due to a
reduction in the Commitment in accordance with this Agreement, or otherwise),
Borrower shall immediately upon demand prepay the principal of the Loans in an
amount at least equal to such excess. 
Each prepayment of principal under this section shall be accompanied by
all interest then accrued and unpaid on the principal so prepaid.  Any principal or interest prepaid pursuant
to this section shall be in addition to, and not in lieu of, all payments otherwise
required to be paid under the Loan Documents at the time of such
prepayment.  For an economically
meaningful period of time in each Fiscal Year, as reasonably determined by GP
LLC, the aggregate outstanding principal balance of all Working Capital Borrowings
shall be reduced to a relatively small amount as may be reasonably specified by
GP LLC.


 


ARTICLE III
- Payments to Lenders


 


Section 3.1.  General Procedures.  Each Restricted Person shall pay all amounts
owing by such Restricted Person with respect to any Obligations (whether for
principal, interest, fees, or otherwise) to Administrative Agent for the
account of the Lender Party to whom such payment is owed in Dollars, without
set-off, deduction or counterclaim, and in immediately available funds.  Each payment under the Loan Documents must
be received by Administrative Agent not later than noon, Boston, Massachusetts
time, on the date such payment becomes due and payable. Any payment received by
Administrative Agent after such time will be deemed to have been made on the
next following Business Day.  Should any
such payment become due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day,
and, in the case of a payment of principal or past due interest, interest shall
accrue and be payable thereon for the period of such extension as provided in
the Loan Document under which such payment is due.  Each payment under a Loan Document to a Lender Party shall be due
and payable at the place provided therein and, if no specific place of payment
is provided, shall be due and payable at the place of payment of Administrative
Agent’s Note.


 


(a)  When Administrative Agent collects or
receives money on account of the Obligations, Administrative Agent shall
distribute all money so collected or received, and each Lender Party shall
apply all such money so distributed, as follows:


 


(i)  first, for the payment of
all Obligations which are then due (and if such money is insufficient to pay
all such Obligations, first to any reimbursements due Administrative Agent
under Section 10.4 and then to the partial payment of all other Obligations
then due in proportion to the amounts thereof, or as Lender Parties shall
otherwise agree);


 


20

















 


(ii)  then for the prepayment of
amounts owing under the Loan Documents (other than principal on the Notes) if
so specified by Borrower;


 


(iii)  then for the prepayment
of principal on the Notes, together with accrued and unpaid interest on the
principal so prepaid; and


 


(iv)  last, for the payment or
prepayment of any other Obligations.


 


All payments applied to
principal or interest on any Note shall be applied first to any interest then
due and payable, then to principal then due and payable, and last to any
prepayment of principal and accrued interest thereon in compliance with
Sections 2.8 and 2.9, as applicable. 
All distributions of amounts described in any of subsections (ii),
(iii), or (iv) above shall be made by Administrative Agent pro rata to each
Lender Party then owed Obligations described in such subsection in proportion
to all amounts owed to all Lender Parties which are described in such
subsection; provided that if any Lender then owes payments to Administrative
Agent under Section 9.4, any amounts otherwise distributable under this section
to such Lender shall be deemed to belong to Administrative Agent, to the extent
of such unpaid payments, and Administrative Agent shall apply such amounts to
make such unpaid payments rather than distribute such amounts to such Lender.


 


Section 3.2.  Capital Reimbursement.  If either (a) the introduction or
implementation of or the compliance with or any change in or in the
interpretation of any Law, or (b) the introduction or implementation of or the
compliance with any request, directive or guideline from any central bank or
other governmental authority (whether or not having the force of Law) affects
or would affect the amount of capital required or expected to be maintained by
any Lender Party or any corporation controlling any Lender Party, then, within
five Business Days after demand by such Lender Party, Borrower will pay to
Administrative Agent for the benefit of such Lender Party, from time to time as
specified by such Lender Party, such additional amount or amounts which such
Lender Party shall determine to be appropriate to compensate such Lender Party
or any corporation controlling such Lender Party in light of such
circumstances, to the extent that such Lender Party reasonably determines that
the amount of any such capital would be increased or the rate of return on any
such capital would be reduced by or in whole or in part based on the existence
of the face amount of such Lender Party’s Loans or commitments under this
Agreement.


 


Section 3.3.  Increased Cost of LIBOR Loans.  If any applicable Law (whether now in effect
or hereinafter enacted or promulgated, including Regulation D) or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of Law):


 


(a)  shall change the basis of taxation of
payments to any Lender Party of any principal, interest, or other amounts
attributable to any LIBOR Loan or otherwise due under this Agreement in respect
of any LIBOR Loan (other than taxes imposed on, or measured by, the overall net
income of such Lender Party or any Applicable Lending Office of such Lender
Party by any jurisdiction in which such Lender Party or any such Applicable
Lending Office is located); or


 


(b)  shall change, impose, modify, apply or deem
applicable any reserve, 


 


21

















 


special deposit or similar
requirements in respect of any LIBOR Loan (excluding those for which such
Lender Party is fully compensated pursuant to adjustments made in the
definition of LIBOR Rate) or against assets of, deposits with or for the
account of, or credit extended by, such Lender Party; or


 


(c)  shall impose on any Lender Party or the
interbank Eurocurrency deposit market any other condition affecting any LIBOR
Loan, the result of which is to increase the cost to any Lender Party of
funding or maintaining any LIBOR Loan or to reduce the amount of any sum
receivable by any Lender Party in respect of any LIBOR Loan by an amount deemed
by such Lender Party to be material,


 


then such Lender Party shall
promptly notify Administrative Agent and Borrower in writing of the happening
of such event and of the amount required to compensate such Lender Party for
such event (on an after-tax basis, taking into account any taxes on such
compensation), whereupon (i) Borrower shall, within five Business Days after
demand therefor by such Lender Party, pay such amount to Administrative Agent
for the account of such Lender Party and (ii) Borrower may elect, by
giving to Administrative Agent and such Lender Party not less than three
Business Days’ notice, to Convert all (but not less than all) of any such LIBOR
Loans into Base Rate Loans.


 


Section 3.4.  Notice; Change of Applicable Lending
Office.  A Lender Party shall notify
Borrower of any event occurring after the date of this Agreement that will
entitle such Lender Party to compensation under Section 3.2, 3.3, or 3.5 hereof
as promptly as practicable, but in any event within 180 days, after such Lender
Party obtains actual knowledge thereof; provided, that (i) if such
Lender Party fails to give such notice within 180 days after it obtains actual
knowledge of such an event, such Lender Party shall, with respect to
compensation payable pursuant to Section 3.2, 3.3, or 3.5 in respect of
any costs resulting from such event, only be entitled to payment under Section
3.2, 3.3, or 3.5 hereof for costs incurred from and after the date 180 days
prior to the date that such Lender Party does give such notice and
(ii) such Lender Party will designate a different Applicable Lending
Office for the Loans affected by such event if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Lender Party, be disadvantageous to such Lender Party, except
that such Lender Party shall have no obligation to designate an Applicable
Lending Office located in the United States of America.  Each Lender Party will furnish to Borrower a
certificate setting forth the basis and amount of each request by such Lender
Party for compensation under Section 3.2, 3.3, or 3.5 hereof.


 


Section 3.5.  Availability.  If (a) any change in applicable Laws, or in
the interpretation or administration thereof of or in any jurisdiction
whatsoever, domestic or foreign, shall make it unlawful or impracticable for
any Lender Party to fund or maintain LIBOR Loans, or shall materially restrict
the authority of any Lender Party to purchase or take offshore deposits of
dollars (i.e., “Eurodollars”), or (b) any Lender Party determines that matching
deposits appropriate to fund or maintain any LIBOR Loan are not available to
it, or (c) any Lender Party determines that the formula for calculating the
LIBOR Rate does not fairly reflect the cost to such Lender Party of making or
maintaining loans based on such rate, with respect to the Commitment hereunder,
then, upon notice by such Lender Party to Borrower and Administrative Agent,
Borrower’s right to elect LIBOR Loans from such Lender Party shall be suspended
to the extent and for the duration of such illegality, impracticability or
restriction and all LIBOR Loans


 


22

















 


of such Lender Party which are then outstanding or are then the subject
of any Borrowing Notice and which cannot lawfully or practicably be maintained
or funded shall immediately become or remain, or shall be funded as, Base Rate
Loans of such Lender Party.  With
respect to the Commitment, Borrower agrees to indemnify each Lender Party
extending credit pursuant thereto, and hold each such Lender Party harmless
against all costs, expenses, claims, penalties, liabilities and damages which
may result from any such change in Law, interpretation or administration.  Such indemnification shall be on an
after-tax basis, taking into account any taxes imposed on the amounts paid as
indemnity.


 


Section 3.6.  Funding Losses.  In addition to its other obligations
hereunder, with respect to the Commitment, Borrower will indemnify each Lender
Party extending credit pursuant thereto against, and reimburse each Lender
Party on demand for, any loss or expense incurred or sustained by such Lender
Party (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender Party to fund
or maintain LIBOR Loans), as a result of (a) any payment or prepayment (whether
or not authorized or required hereunder) of all or a portion of a LIBOR Loan on
a day other than the day on which the applicable Interest Period ends, (b) any
payment or prepayment, whether or not required hereunder, of a Loan made after
the delivery, but before the effective date, of a Continuation/Conversion
Notice, if such payment or prepayment prevents such Continuation/Conversion
Notice from becoming fully effective, (c) the failure of any Loan to be made or
of any Continuation/Conversion Notice to become effective due to any condition
precedent not being satisfied or due to any other action or inaction of any
Restricted Person, or (d) any Conversion (whether or not authorized or required
hereunder) of all or any portion of any LIBOR Loan into a Base Rate Loan or
into a different LIBOR Loan on a day other than the day on which the applicable
Interest Period ends.  Such
indemnification shall be on an after-tax basis, taking into account any taxes
imposed on the amounts paid as indemnity.


 


Section
3.7.  Reimbursable
Taxes.  With respect to the
Commitment, Borrower covenants and agrees with each Lender Party extending
credit pursuant thereto that:


 


(a)  Borrower will indemnify each such Lender
Party against and reimburse each such Lender Party for all present and future
stamp and other taxes, duties, levies, imposts, deductions, charges, costs, and
withholdings whatsoever imposed, assessed, levied or collected on or in respect
of this Agreement, any LIBOR Loans (whether or not legally or correctly
imposed, assessed, levied or collected), excluding, however, any taxes imposed
on or measured by the overall net income of Administrative Agent or such Lender
Party or any Applicable Lending Office of such Lender Party by any jurisdiction
in which such Lender Party or any such Applicable Lending Office is located
(all such non-excluded taxes, levies, costs and charges being collectively
called “Reimbursable Taxes” in this section). 
Such indemnification shall be on an after-tax basis, taking into account
any taxes imposed on the amounts paid as indemnity.


 


(b)  All payments on account of the principal of,
and interest on, each such Lender Party’s Loans and Note, and all other amounts
payable by Borrower to any such Lender Party hereunder, shall be made in full
without set-off or counterclaim and shall be made free and clear of and without
deductions or withholdings of any nature by reason of any Reimbursable Taxes,
all of which will be for the account of Borrower.  In the event of Borrower being compelled by Law to make any such
deduction or withholding from any payment to any such Lender Party, Borrower
shall pay on the due date of such payment, by way of additional interest, such
additional amounts


 


23

















 


as are needed to cause the amount receivable by such Lender Party after
such deduction or withholding to equal the amount which would have been
receivable in the absence of such deduction or withholding.  If Borrower should make any deduction or
withholding as aforesaid, Borrower shall within 60 days thereafter forward to
such Lender Party an official receipt or other official document evidencing
payment of such deduction or withholding.


 


(c)  If Borrower is ever required to pay any
Reimbursable Tax with respect to any LIBOR Loan, Borrower may elect, by giving
to Administrative Agent and such Lender Party not less than three Business
Days’ notice, to Convert all (but not less than all) of any such LIBOR Loan
into a Base Rate Loan, but such election shall not diminish Borrower’s
obligation to pay all Reimbursable Taxes.


 


(d)  Notwithstanding the foregoing provisions of
this section, Borrower shall be entitled, to the extent it is required to do so
by Law, to deduct or withhold (and not to make any indemnification or
reimbursement for) income or other similar taxes imposed by the United States
of America (other than any portion thereof attributable to a change in federal
income tax Laws effected after the date hereof) from interest, fees or other
amounts payable hereunder for the account of such Lender Party, other than such
a Lender Party (i) who is a US person for Federal income tax purposes or
(ii) who has the Prescribed Forms on file with Administrative Agent (with
copies provided to the relevant Borrower) for the applicable year to the extent
deduction or withholding of such taxes is not required as a result of the
filing of such Prescribed Forms, provided that if Borrower shall so deduct or
withhold any such taxes, it shall provide a statement to Administrative Agent
and such Lender Party, setting forth the amount of such taxes so deducted or
withheld, the applicable rate and any other information or documentation which
such Lender Party may reasonably request for assisting such Lender Party to
obtain any allowable credits or deductions for the taxes so deducted or
withheld in the jurisdiction or jurisdictions in which such Lender Party is
subject to tax.  As used in this
section, “Prescribed Forms” means such duly executed forms or statements, and
in such number of copies, which may, from time to time, be prescribed by Law
and which, pursuant to applicable provisions of (x) an income tax treaty
between the United States and the country of residence of such Lender Party
providing the forms or statements, (y) the Code, or (z) any applicable rules or
regulations thereunder, permit Borrower to make payments hereunder for the
account of such Lender Party free of such deduction or withholding of income or
similar taxes.


 


Section 3.8.  Replacement of Lenders.  If any Lender Party seeks reimbursement for
increased costs under Sections 3.2 through 3.7, then within ninety days
thereafter — provided no Event of Default then exists — Borrower shall have the
right (unless such Lender Party withdraws its request for additional
compensation) to replace such Lender Party by requiring such Lender Party to
assign its Loans and Note and its commitments hereunder to an Eligible
Transferee reasonably acceptable to Administrative Agent and to Borrower,
provided that:  (i) all Obligations
of Borrower owing to such Lender Party being replaced (including such increased
costs and any breakage costs with respect to any outstanding LIBOR Loans, but
excluding principal and accrued interest on the Note being assigned) shall be
paid in full to such Lender Party concurrently with such assignment, and
(ii) the replacement Eligible Transferee shall purchase the Notes being
assigned by paying to such Lender Party a price equal to the principal amount
thereof plus accrued and unpaid interest and accrued and unpaid commitment fees
thereon.  In connection with any such
assignment Borrower, Administrative Agent, such Lender Party and the
replacement Eligible Transferee shall otherwise comply with Section 10.5.


 


24

















 


Notwithstanding the foregoing rights of Borrower under this section,
however, Borrower may not replace any Lender Party which seeks reimbursement
for increased costs under Section 3.2 through 3.7 unless Borrower is at
the same time replacing all Lender Parties which are then seeking such
compensation.


 


ARTICLE IV
- Conditions Precedent to Lending


 


Section 4.1.  Documents to be Delivered.  No Lender has any obligation to make its
first Loan unless Administrative Agent shall have received all of the
following, at Administrative Agent’s office in Boston, Massachusetts, duly
executed and delivered and in form, substance and date satisfactory to
Administrative Agent, each of which was so executed and delivered:


 


(a)  This Agreement and any
other document that Lenders are to execute in connection herewith.


 


(b)  Each Note and the guaranty
of each Guarantor.


 


(c)  Certain certificates
including:


 


(i)  An “Omnibus Certificate” of
the secretary or assistant secretary and any vice president of GP LLC, which
shall contain the names and signatures of the officers of GP LLC authorized to
execute this Agreement and the other Loan Documents and which shall certify to
the truth, correctness and completeness of the following exhibits attached
thereto:  (1) a copy of resolutions duly
adopted by the Board of Directors of GP LLC and in full force and effect at the
time this Agreement is entered into, authorizing the execution of the Loan
Documents delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and therein, (2) a copy of
the charter documents of Borrower and all amendments thereto, certified by the
appropriate official of its jurisdiction of organization, and (3) a copy of the
agreement of limited partnership of Borrower;


 


(ii)  An “Omnibus Certificate”
of the secretary or assistant secretary and any vice president of Plains
Marketing GP Inc., which shall contain the names and signatures of the officers
of such company authorized to execute Loan Documents and which shall certify to
the truth, correctness and completeness of the following exhibits attached
thereto:  (1) a copy of resolutions duly
adopted by the Board of Directors of such company and in full force and effect
at the time this Agreement is entered into, authorizing the execution of the
Loan Documents delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and therein, (2) a copy of
the charter documents of each Significant Restricted Person, other than those
Significant Restricted Persons whose charter documents are attached to the
certificates described in Section 4.1(c)(i) above or Section 4.1(c)(iii) below
and all amendments thereto, certified by the appropriate official of its
jurisdiction of organization, and (3) a copy of any bylaws or agreement of
limited partnership of such Significant Restricted Persons;


 


25

















 


(iii)  An “Omnibus Certificate”
of the secretary or assistant secretary and any vice president of PMC (Nova
Scotia) Company, which shall contain the names and signatures of the officers
of such company authorized to execute Loan Documents and which shall certify to
the truth, correctness and completeness of the following exhibits attached
thereto:  (1) a copy of resolutions duly
adopted by the Board of Directors of such company and in full force and effect
at the time this Agreement is entered into, authorizing the execution of the
Loan Documents delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and therein, (2) a copy of
the charter documents of such company and Plains Marketing Canada, L.P. and all
amendments thereto, certified by the appropriate official of its jurisdiction
of organization, and (3) a copy of the bylaws of such company and the agreement
of limited partnership of Plains Marketing Canada, L.P.; and


 


(iv)  A certificate of the chief
financial officer of GP LLC, regarding satisfaction of Section 4.2.


 


(d)  A certificate (or certificates) of the due
formation, valid existence and good standing of each Significant Restricted
Person in its respective jurisdiction of organization, issued by the
appropriate authorities of such jurisdiction.


 


(e)  Favorable opinions of Tim Moore, Esq.,
General Counsel for Restricted Persons, substantially in the form set forth in
Exhibit E-1, Fulbright & Jaworski L.L.P., special Texas and New York
counsel to Restricted Persons, substantially in the form set forth in Exhibit
E-2, and Bennett Jones LLP, special Canadian Counsel for Restricted Persons,
substantially in the form set forth in Exhibit E-3.


 


(f) Financial
projections for Borrower and its Subsidiaries through December 2006, in form
and substance reasonably satisfactory to Administrative Agent.


 


(g)  Consolidated financial statements of
Borrower and its Subsidiaries as of September 30, 2003, reflecting compliance
with Sections 7.8 and 7.9, together with a certificate by the chief
financial officer of GP LLC certifying such financial statements.


 


(h)  No Material Adverse Change shall have
occurred since December 31, 2002.


 


(i)  Administrative Agent shall have received all
documents and instruments which Administrative Agent has then requested
(including opinions of legal counsel for Restricted Persons and Administrative
Agent; corporate documents and records; documents evidencing governmental
authorizations, consents, approvals, licenses and exemptions; and certificates
of public officials and of officers and representatives of Borrower and other
Persons), as to (i) the accuracy and validity of or compliance with all
representations, warranties and covenants made by any Restricted Person in this
Agreement and the other Loan Documents, (ii) the satisfaction of all conditions
contained herein or therein, and (iii) all other matters pertaining hereto and
thereto.  All such additional documents
and instruments shall be satisfactory to Administrative Agent in form and
substance.


 


26

















 


(j)  Payment of all commitment,
facility, agency and other fees required to be paid to Administrative Agent or
Lender pursuant to any Loan Documents or any commitment agreement heretofore
entered into.


 


(k)  Evidence of the payment in
full of all outstanding Indebtedness under the Existing Agreements, the release
of all Liens securing such Indebtedness, and termination of the Existing
Agreements.


 


Section 4.2.  Additional Conditions Precedent.  No Lender has any obligation to make any
Loan (including its first), unless the following conditions precedent have been
satisfied:


 


(a)  All representations and
warranties made by any Restricted Person in any Loan Document shall be true on
and as of the date of such Loan as if such representations and warranties had
been made as of the date of such Loan except to the extent that such
representation or warranty was made as of a specific date or updated, modified
or supplemented as of a subsequent date with the consent of Majority Lenders,
then in each such case, such other date.


 


(b)  No Default shall exist at
the date of such Loan or result from such Loan.


 


ARTICLE V
- Representations and Warranties


 


To confirm each Lender’s understanding
concerning Restricted Persons and Restricted Persons’ businesses, properties
and obligations and to induce each Lender to enter into this Agreement and to
extend credit hereunder, Borrower represents and warrants to each Lender that:


 


Section 5.1.  No Default.  No event has occurred and is continuing which constitutes a
Default, except as has been waived in accordance with this Agreement.


 


Section 5.2.  Organization and Good Standing.  Each Significant Restricted Person is duly
organized or formed, validly existing and in good standing under the Laws of
its jurisdiction of organization or formation, having all requisite corporate
or similar powers required to carry on its business and enter into and carry
out the transactions contemplated hereby. 
Each Significant Restricted Person is duly qualified, in good standing,
and authorized to do business in all other jurisdictions wherein the character
of the properties owned or held by it or the nature of the business transacted
by it makes such qualification necessary except where the failure to so qualify
would not reasonably be expected to cause a Material Adverse Change.


 


Section 5.3.  Authorization.  Each Restricted Person has duly taken all
action necessary to authorize the execution and delivery by it of the Loan
Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder.  Borrower is duly authorized
to borrow funds hereunder.


 


Section 5.4.  No Conflicts or Consents.  The execution and delivery by each
Restricted Person of the Loan Documents to which it is a party, the performance
by it of its obligations, and the consummation of the transactions contemplated
thereby, do not and will not (i) violate any provision of (1) Law applicable to
it, (2) its organizational documents or (3) any judgment, order or material
license or permit applicable to or binding upon it, (ii) result in the
acceleration of any Indebtedness owed by it or (iii) result in or require the
creation of any consensual Lien upon any


 


27

















 


of its material assets or
properties except as expressly contemplated in, or permitted by, the Loan
Documents.  Except as expressly
contemplated in or permitted by the Loan Documents, disclosed in the Disclosure
Schedule or disclosed pursuant to Section 6.4, no permit, consent, approval,
authorization or order of, and no notice to or filing, registration or
qualification with, any Tribunal is required on the part of any Restricted
Person a party thereto pursuant to the provisions of any material Law
applicable to it as a condition to its execution, delivery or performance of
any Loan Document or (ii) to consummate any transactions contemplated by the
Loan Documents.


 


Section 5.5.  Enforceable Obligations.  This Agreement is, and the other Loan
Documents when duly executed and delivered will be, legal, valid and binding
obligations of each Restricted Person which is a party hereto or thereto,
enforceable in accordance with their terms except as such enforcement may be
limited by bankruptcy, insolvency or similar Laws of general application
relating to the enforcement of creditors’ rights and general principles of
equity.


 


Section 5.6.  Initial Financial Statements.  Borrower has heretofore delivered to each
Lender true, correct and complete copies of the Initial Financial
Statements.  The Initial Financial
Statements fairly present Borrower’s Consolidated financial position at the
date thereof and the Consolidated results of Borrower’s operations for the
periods thereof, and in the case of the annual Initial Financial Statements,
Consolidated cash flows for the period thereof.  Since the date of the annual Initial Financial Statements, no
Material Adverse Change has occurred. 
All Initial Financial Statements described in clause (i) of that defined
term were prepared in accordance with GAAP.


 


Section 5.7.  Other Obligations and Restrictions.  As of the closing date hereof, no Restricted
Person has any outstanding payment obligations of any kind (including
contingent obligations, tax assessments and unusual forward or long-term
commitments) which are, in the aggregate, material to Borrower or material with
respect to Borrower’s Consolidated financial condition and not reflected in the
Initial Financial Statements, disclosed in the Disclosure Schedule or otherwise
permitted under Section 7.1.  Except as
reflected disclosed in the Disclosure Schedule, no Restricted Person is subject
to or restricted by any franchise, contract, deed, charter restriction, or
other instrument or restriction which would reasonably be expected to cause a
Material Adverse Change.


 


Section 5.8.  Full Disclosure.  No certificate, statement or other
information delivered herewith or heretofore by any Restricted Person to any
Lender in connection with the negotiation of this Agreement or in connection
with any transaction contemplated hereby contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading as of the date made or deemed made (or if
such information expressly relates or refers to an earlier date, as of such
earlier date).  All written information
furnished after the date hereof by or on behalf of any Restricted Person to
Administrative Agent or any Lender Party in connection with this Agreement and
the other Loan Documents and the transactions contemplated hereby and thereby
will be true, complete and accurate in every material respect in light of the
circumstances in which made or based on reasonable estimates, in each case as
of the date on which such information is stated or certified (or if such
information expressly relates or refers to an earlier date, as of such earlier
date).  There is no fact known to any
Restricted Person


 


28

















 


that has not been disclosed to each Lender in writing which would
reasonably be expected to cause a Material Adverse Change.


 


Section 5.9.  Litigation.  Except as disclosed in the Initial Financial Statements or in the
Disclosure Schedule:  (i) there are
no actions, suits or legal, equitable, arbitrative or administrative
proceedings pending, or to the knowledge of any Restricted Person overtly
threatened, against any Restricted Person before any Tribunal which would
reasonably be expected to cause a Material Adverse Change, and (ii) there are
no outstanding judgments, injunctions, writs, rulings or orders by any such
Tribunal against any Restricted Person or, to the knowledge of Borrower, any
Restricted Person’s stockholders, partners, directors or officers which would
reasonably be expected to cause a Material Adverse Change.


 


Section 5.10.  ERISA Plans and Liabilities.  All currently existing ERISA Plans are
listed in the Disclosure Schedule or pursuant to Section 6.4.  Except as disclosed in the Initial Financial
Statements, in the Disclosure Schedule or pursuant to Section 6.4, no
Termination Event has occurred with respect to any ERISA Plan and all ERISA
Affiliates are in compliance with ERISA in all material respects, to the extent
that the non-compliance therewith would not be reasonably expected to cause a
Material Adverse Change.  No ERISA
Affiliate is required to contribute to, or has any other absolute or contingent
liability in respect of, any “multiemployer plan” as defined in Section 4001 of
ERISA.  Except as set forth in the
Disclosure Schedule:  (i) no
“accumulated funding deficiency” (as defined in Section 412(a) of the Code)
exists with respect to any ERISA Plan, whether or not waived by the Secretary
of the Treasury or his delegate, and (ii) the current value of each ERISA
Plan’s benefits does not exceed the current value of such ERISA Plan’s assets
available for the payment of such benefits by more than $5,000,000.


 


Section 5.11.  Compliance with Permits, Consents and Law.  Except as set forth in the Disclosure
Schedule or pursuant to Section 6.4, each Restricted Person has all permits,
licenses and authorizations required in connection with the conduct of its
businesses, except to the extent failure to have any such permit, license or
authorization would not reasonably be expected to cause a Material Adverse
Change.  Each Restricted Person is in
compliance with the terms and conditions of all such permits, licenses and
authorizations, and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any Law, including applicable Environmental Law, or in
any regulation, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved thereunder, except to
the extent that non-compliance therewith would not reasonably be expected to
cause a Material Adverse Change or such term, restriction or otherwise is being
contested in good faith or a bona fide dispute exists with respect thereto.


 


Section 5.12.  Environmental Laws.  Except as set forth in the Disclosure
Schedule or disclosed pursuant to Section 6.4, (i) Borrower and its
Subsidiaries are conducting their businesses in material compliance with all
applicable Laws, including Environmental Laws, and have and are in compliance
with all licenses and permits required under any such Laws, unless failure to
so comply or have such licenses and permits would not reasonably be expected to
cause a Material Adverse Change; (ii) none of the operations or properties
of Borrower or any of its Subsidiaries is the subject of federal, provincial or
local investigation evaluating whether any material remedial action is needed
to respond to a release of any Hazardous Materials into the environment or to
the improper storage or disposal (including storage or disposal at offsite
locations) of any Hazardous Materials, unless such remedial action would not
reasonably be


 


29

















 


expected to cause a Material Adverse Change; and (iii) neither
Borrower nor any of its Subsidiaries (and to the actual knowledge of Borrower,
no other Person) has filed any notice under any Law indicating that any
Restricted Person is responsible for the improper release into the environment,
or the improper storage or disposal, of any material amount of any Hazardous
Materials or that any Hazardous Materials have been improperly released, or are
improperly stored or disposed of, upon any property of any such Person, other
than of an alleged improper release, storage or disposal that would not
reasonably be expected to cause a Material Adverse Change.


 


Section 5.13.  Borrower’s Subsidiaries.  Borrower has no Subsidiary and owns no stock
in any other corporation or association except as listed in the Disclosure
Schedule or disclosed after the closing date hereof to Administrative Agent in
writing.  No Restricted Person is a
member of any general or limited partnership, limited liability company, joint
venture or association of any type whatsoever except those listed in the
Disclosure Schedule or disclosed after the closing date hereof to
Administrative Agent in writing. 
Borrower owns, directly or indirectly, the equity interest in each of
its Subsidiaries which is indicated in the Disclosure Schedule.


 


Section 5.14.  Title to Properties.  Each Restricted Person has good and
defensible title to all of its material properties and assets, free and clear
of all Liens (other than Permitted Liens) and of all impediments to the use of
such properties and assets in such Restricted Person’s business, other than
such impediments that would not reasonably be expected to cause a Material
Adverse Change.


 


Section 5.15.  Government Regulation.  Neither Borrower nor any other Restricted
Person owing Obligations is subject to regulation under the Public Utility
Holding Company Act of 1935, the Investment Company Act of 1940 (as any of the
preceding acts have been amended) or any other Law which regulates the
incurring by such Person of Indebtedness, including Laws relating to common
contract carriers or the sale of electricity, gas, steam, water or other public
utility services.  Neither Borrower nor
any other Restricted Person is subject to regulation under the Federal Power
Act which would violate, result in a default of, or prohibit the effectiveness
or the performance of any of the provisions of the Loan Documents.


 


Section 5.16.  Insider.  No Restricted Person, nor any Person having “control” (as that
term is defined in 12 U.S.C. § 375b(9) or in regulations promulgated pursuant
thereto) of any Restricted Person, is a “director” or an “executive officer” or
“principal shareholder” (as those terms are defined in 12 U.S.C. § 375b(8) or
(9) or in regulations promulgated pursuant thereto) of any Lender, of a bank
holding company of which any Lender is a Subsidiary or of any Subsidiary of a
bank holding company of which any Lender is a Subsidiary.


 


Section 5.17.  Solvency.  Upon giving effect to the issuance of the Notes, the execution of
the Loan Documents by Borrower and each Guarantor and the consummation of the
transactions contemplated hereby, (i) Borrower and each Guarantor will be
solvent (as such term is used in applicable bankruptcy, liquidation,
receivership, insolvency or similar Laws), and the sum of Borrower’s and each
Guarantor’s absolute and contingent liabilities, including the Obligations or
guarantees thereof, shall not exceed the fair market value of such Restricted
Person’s assets, and (ii) Borrower’s and each Guarantor’s capital should be
adequate for the businesses in which such Restricted Person is engaged and
intends to be engaged.  Neither Borrower
nor any other Restricted Person has incurred (whether under the Loan Documents
or otherwise), nor does any


 


30

















 


Restricted Person intend to incur or reasonably foreseeably believes
that it will incur, debts which will be beyond its ability to pay as such debts
mature.


 


Section 5.18.  Not a “Reportable Transaction”.  Borrower does not intend to treat the
Borrowings and related transactions as being a “reportable transaction” (within
the meaning of Treasury Regulation Section 1.6011-4).  In the event Borrower determines to take any
action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof.  If
Borrower takes any action inconsistent with such intention, or if Borrower so
notifies the Administrative Agent, then Borrower acknowledges that, as a result
of such action or notice, one or more of the Lenders may treat its Loans as part
of a transaction that is subject to Treasury Regulation Section 301.6112-1, and
such Lender or Lenders will maintain the lists and other records required by
such Treasury Regulation.


 


ARTICLE VI
- Affirmative Covenants


 


To conform
with the terms and conditions under which each Lender is willing to have credit
outstanding to Borrower, and to induce each Lender to enter into this Agreement
and extend credit hereunder, Borrower covenants and agrees that until the full
and final payment of the Obligations and the termination of this Agreement,
unless Majority Lenders, or all Lenders as required under Section 10.1, have
previously agreed otherwise:


 


Section 6.1.  Payment and Performance.  Each Restricted Person will pay all amounts
due from it pursuant to the provisions of the Loan Documents to which it is a
party in accordance with the terms thereof and will observe, perform and comply
with every covenant, term and condition imposed on it pursuant to the
provisions of such Loan Documents.


 


Section 6.2.  Books, Financial Statements and Reports.  Each Restricted Person will at all times
maintain full and accurate books of account and records. Borrower will maintain
and will cause its Subsidiaries to maintain a standard system of accounting,
will maintain its Fiscal Year, and will furnish the following statements and
reports to each Lender at Borrower’s expense:


 


(a)  Promptly upon the filing thereof, and in any
event within ninety (90) days after the end of each Fiscal Year, a copy of
Borrower’s Form 10-K, which report shall include Borrower’s complete
Consolidated financial statements together with all notes thereto, prepared in
reasonable detail in accordance with GAAP, together with an opinion, without
material qualification, based on an audit using generally accepted auditing
standards, by PricewaterhouseCoopers LLP, or other independent certified public
accountants selected by General Partner, stating that such Consolidated
financial statements have been so prepared. 
These financial statements shall contain a Consolidated balance sheet as
of the end of such Fiscal Year and Consolidated statements of earnings for such
Fiscal Year.  Such Consolidated
financial statements shall set forth in comparative form the corresponding
figures for the preceding Fiscal Year.


 


(b)  Promptly upon the filing thereof, and in any
event within sixty (60) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a copy of Borrower’s Form 10-Q, which report
shall include Borrower’s unaudited Consolidated balance sheet as of the end of
such Fiscal Quarter and Consolidated statements of Borrower’s earnings and cash
flows for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter.  In addition Borrower will, together with
each such set of financial statements and


 


31

















 


each set of financial statements furnished under subsection (a) of this
section, furnish a certificate in the form of Exhibit D signed by the chief
financial officer, principal accounting officer or treasurer of General Partner
stating that such financial statements are accurate and complete in all
material respects (subject to normal year-end adjustments), stating that he has
reviewed the Loan Documents, containing calculations showing compliance (or
non-compliance) at the end of such Fiscal Quarter with the requirements of
Sections 7.8 and 7.9 and stating that, to the best of his knowledge, no Default
exists at the end of such Fiscal Quarter or at the time of such certificate or
specifying the nature and period of existence of any such Default.


 


(c)  Promptly upon their becoming available,
copies of all Form 8-K’s filed by Borrower with any securities exchange, the
Securities and Exchange Commission or any similar governmental authority.


 


(d)  Promptly upon their becoming available,
copies of all financial statements, reports, notices and proxy statements sent
by Borrower to its unit holders and all registration statements filed by Borrower
with any securities exchange, the Securities and Exchange Commission or any
similar governmental authority.


 


(e)  Prompt notice of any publicly announced
change in PAA’s Debt Rating by either Standard & Poor’s or Moody’s.


 


Documents required to be delivered
pursuant to Section 6.2(a), (b), (c) or (d), (to the extent any such documents
are included in materials otherwise filed with the Securities and Exchange
Commission) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date on which the Borrower posts such
documents, or provides a link thereto, on the Borrower’s website on the
Internet at the website address listed in Section 10.3, and notifies
Administrative Agent of such posting or link.


 


Section 6.3.  Other Information and Inspections.  In each case subject to the last sentence of
this Section 6.3, each Restricted Person will furnish to Administrative Agent
any information which Administrative Agent or any Lender may from time to time
reasonably request concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with any Restricted Person’s businesses
and operations.  In each case subject to
the last sentence of this Section 6.3, each Restricted Person will permit representatives
appointed by Administrative Agent (including independent accountants, auditors,
agents, attorneys, appraisers and any other Persons), upon reasonable prior
notice, to visit and inspect during normal business hours any of such
Restricted Person’s property, including its books of account, other books and
records, and any facilities or other business assets, and to make extra copies
therefrom and photocopies and photographs thereof, and to write down and record
any information such representatives obtain, and each Restricted Person shall
permit Administrative Agent or its representatives to investigate and verify
the accuracy of the information furnished to Administrative Agent or any Lender
in connection with the Loan Documents and to discuss all such matters with its
officers, employees and, upon reasonable prior notice to Borrower, its
representatives.  Each of the foregoing
inspections and examinations shall be made subject to compliance with
applicable safety standards and the same conditions applicable to any
Restricted Person in respect of property of that Restricted Person on the
premises of Persons other than a Restricted Person or an Affiliate of a
Restricted Person, and all information, books and records furnished or
requested to be made, all information to be investigated or verified and all
discussion conducted with any officer,


 


32

















 


employee or representative of any Restricted Person shall be subject to
any applicable attorney-client privilege exceptions which the Restricted Person
determines is reasonably necessary and compliance with conditions to
disclosures under non-disclosure agreements between any Restricted Person and
Persons other than a Restricted Person or an Affiliate of a Restricted Person
and the express undertaking of each Person acting at the direction of or on
behalf of any Lender Party to be bound by the confidentiality provisions of
Section 10.6 of this Agreement.


 


Section 6.4.  Notice of Material Events.  Borrower will notify each Lender Party, not
later than five (5) Business Days after any executive officer of Borrower has
knowledge thereof, stating that such notice is being given pursuant to this
Agreement, of:


 


(a)  the occurrence of any
Material Adverse Change,


 


(b)  the occurrence of any
Default,


 


(c)  the acceleration of the
maturity of any Indebtedness owed by any Restricted Person or of any default by
any Restricted Person under any indenture, mortgage, agreement, contract or
other instrument to which any of them is a party or by which any of them or any
of their properties is bound, if such acceleration or default would reasonably
be expected to cause a Material Adverse Change,


 


(d)  the occurrence of any
Termination Event,


 


(e)  any claim under any
Environmental Law adverse to a Restricted Person or of potential liability with
respect to such claim, or any other adverse claim asserted against any
Restricted Person or with respect to any Restricted Person’s properties taken
as a whole, in each case, which claim would reasonably be expected to cause a
Material Adverse Change, and


 


(f)  the filing of any suit or
proceeding, or the assertion in writing of a claim against any Restricted
Person or with respect to any Restricted Person’s properties, which would
reasonably be expected to cause a Material Adverse Change.


 


Upon the occurrence of any of the foregoing the applicable Restricted
Person will take all necessary or appropriate steps to remedy promptly, if
applicable, any such Material Adverse Change, Default, acceleration, default or
Termination Event, to protect against any such adverse claim, to defend any
such claim, suit or proceeding, and to resolve all controversies on account of
any of the foregoing.


 


Section 6.5.  Maintenance of Existence, Qualifications
and Assets.  Each Significant
Restricted Person (i) will maintain and preserve its existence and its rights
(including permits, licenses and other authorizations required under
Environmental Laws) and franchises in full force and effect, (ii) will qualify
to do business in all states or jurisdictions where required by applicable Law,
and (iii) keep all of its material assets that are useful in and necessary to
its business in good working order and condition (ordinary wear and tear and
obsoleteness excepted) except, in each case (a) where the failure so to
maintain, preserve, qualify or keep would not be reasonably expected to cause a
Material Adverse Change, (b) as permitted in Section 7.3 or as a result of
statutory conversions or (c) as a result of a release permitted pursuant to
Section 6.9.  Borrower will notify
Administrative Agent in writing of any changes in its or any other


 


33

















 


Significant Restricted Person’s name or the location of its or any
other Significant Restricted Person’s chief executive office or principal place
of business.


 


Section 6.6.  Payment of Taxes, etc.  Each Significant Restricted Person will (a)
timely file all required tax returns (including any extensions), (b) timely pay
all taxes, assessments, and other governmental charges or levies imposed upon
it or upon its income, profits or property, and (c) maintain appropriate
accruals and reserves for all of the foregoing as required by GAAP, except to
the extent that (y) it is in good faith contesting the validity thereof by
appropriate proceedings, if necessary, and has set aside on its books adequate
reserves therefor which are required by GAAP or (z) such non-filing,
non-payment or non-maintenance would not reasonably be expected to cause a
Material Adverse Change.


 


Section 6.7.  Insurance.  In accordance with industry standards, each Significant
Restricted Person will keep insured (by responsible and reputable insurance
companies or associations) or self-insured, at the option of Borrower or such
Significant Restricted Person, in such amounts and against such risks as are
usually insured by Persons engaged in the same or similar businesses and owning
similar properties.  The insurance
coverages and amounts will be reasonably determined by Borrower, based on
coverages carried by prudent owners of similar property, and with respect to
each Restricted Person, may be maintained by the Borrower.


 


Section 6.8.  Compliance with Agreements and Law.  Each Significant Restricted Person will
perform all material obligations it is required to perform under the terms of
each indenture, mortgage, deed of trust, security agreement, lease, franchise
and other material agreement, contract or other instrument (including all
contractual obligations and agreements with respect to environmental
remediation or other environmental matters) to which it is a party or by which
it or any of its properties is bound to the extent that non-performance
therewith would not reasonably be expected to cause a Material Adverse Change.  Each Restricted Person will conduct its
business and affairs in compliance, in all material respects, with all Laws
(including Environmental Laws) applicable thereto to the extent non-compliance
therewith would not reasonably be expected to cause a Material Adverse Change
or such requirement of Law is being contested in good faith or a bona fide
dispute exists with respect thereto.


 


Section 6.9.  Guaranties of Subsidiaries.  Each Significant Restricted Person that has
outstanding Indebtedness (other than guarantees hereunder) shall execute and
deliver to Administrative Agent an absolute and unconditional guaranty of the
timely repayment of the Obligations (in each case for which such Person is not
a borrower, account party or similar primary and direct obligor), which
guaranty shall be reasonably satisfactory to Administrative Agent in form and
substance; provided, with respect to any such Person that is not a
Wholly Owned Subsidiary of Borrower, for which consent or approval of third
parties is required for the delivery of such guaranty, such Person shall not be
required to deliver such guaranty, but shall use its commercially reasonable
best efforts, as determined by Administrative Agent, to deliver such guaranty.
Notwithstanding any provision contained herein, in no event shall any
Unrestricted Subsidiary be required to execute and deliver any guaranty for, or
in respect of, the Obligations, or any part thereof.  Borrower will cause each of its Subsidiaries required to deliver
a guaranty pursuant to this Section 6.9 to deliver to Administrative Agent,
simultaneously with its delivery of such a guaranty, written evidence
satisfactory to Administrative Agent that such Subsidiary has taken all
corporate, limited liability company or partnership action necessary to duly
approve and authorize its execution, delivery and performance of such
guaranty.  Borrower


 


34

















 


may at any time request the release of one or more Guarantors from
their guaranty of the Obligations, and each such Guarantor shall be so released
upon such request, provided, no Default then exists and either (a) such
Guarantor has no outstanding Indebtedness or guaranties of Indebtedness (other
than guaranties hereunder) or (b) the request is in contemplation of the
sale or disposition of such Subsidiary (including all or substantially all of
its assets).  Administrative Agent is
authorized to execute and deliver to Borrower evidence of any such release, as
reasonably requested by, and at the expense of, Borrower.


 


ARTICLE VII
- Negative Covenants


 


To conform
with the terms and conditions under which each Lender is willing to have credit
outstanding to Borrower and to induce each Lender to enter into this Agreement
and make the Loans, Borrower covenants and agrees that until the full and final
payment of the Obligations and the termination of this Agreement, unless
Majority Lenders, or all Lenders as required under Section 10.1, have
previously agreed otherwise:


 


Section 7.1.  Subsidiary Indebtedness.  No Subsidiary of Borrower will incur any
Indebtedness other than:


 


(a)  the Obligations;


 


(b)  Guaranties by Guarantors of Indebtedness of
any Restricted Person (i) arising under the US/Canada Credit Agreement or (ii)
if arising under any other agreement, the incurrence of which did not result in
a Default or an Event of Default;


 


(c)  Indebtedness of (i) PMC (Nova Scotia)
Company and Plains Marketing Canada, L.P. pursuant to the US/Canada Credit
Agreement in an aggregate principal amount not to exceed at any time
outstanding $325,000,000, and (ii) Plains Marketing pursuant to the Contango
Credit Agreement in an aggregate principal amount not to exceed at any time
outstanding $300,000,000;


 


(d)  Indebtedness of any Restricted Person owing
to another Restricted Person;


 


(e)  Indebtedness of any Subsidiary described in
clause (b) of the definition of “Indebtedness” that is determinable but not yet
earned; provided, Borrower reasonably contemplates that such
Indebtedness will be repaid from the proceeds of one or more advances made by
Borrower to such Subsidiary;


 


(f)  Indebtedness of a Subsidiary acquired
(including acquisition by merger, consolidation or amalgamation) after the date
hereof by a Restricted Person, which Indebtedness was incurred by such Subsidiary
before the time of such acquisition, merger, consolidation or amalgamation, and
was not created in contemplation thereof; provided, that
contemporaneously with such acquisition, merger, consolidation or amalgamation,
and so long as no adverse tax and/or regulatory consequences are caused
thereby, such Subsidiary shall be a Guarantor subject to the provisions of
Section 6.9; and


 


(g)  Indebtedness not otherwise described in the
foregoing clauses (a) through (f) owing by any one or more Guarantors in an aggregate
principal amount not to exceed at any time


 


35

















 


outstanding the greater of (A) $100,000,000 and (B) fifteen
percent (15%) of Consolidated Tangible Net Worth.


 


Section 7.2.  Limitation on Liens.  No Restricted Person will create, assume or
permit to exist any Lien upon any of the properties or assets which it now owns
or hereafter acquires, except the following (“Permitted Liens”):


 


(a)  Liens securing (i) on a pari passu basis,
both (x) the Obligations and (y) the Liabilities of any Restricted Person
arising under the US/Canada Credit Agreement, and (ii) if required, any related
interest hedge rate agreements;


 


(b)  Liens securing Indebtedness of Plains
Marketing under the Contango Credit Agreement at any one time outstanding not
in excess of $300,000,000 on (i) Petroleum Products subject to Cash and Carry
Purchases financed pursuant to the Contango Credit Agreement, (ii) hedging
contracts covering such Petroleum Products, (iii) contracts for the purchase
or sale of such Petroleum Products and accounts receivable arising therefrom,
and (iv) all proceeds of the foregoing;


 


(c)  Liens imposed by any governmental authority
for taxes, assessments or charges not yet due or the validity of which is being
contested in good faith and by appropriate proceedings, if necessary, for which
adequate reserves are maintained on the books of any Restricted Person in
accordance with GAAP;


 


(d)  pledges or deposits of cash or securities
under worker’s compensation, unemployment insurance or other social security
legislation;


 


(e)  carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, landlord’s, or other like Liens (including without
limitation, Liens on property of any Restricted Person in the possession of storage
facilities, pipelines or barges) arising in the ordinary course of business for
amounts which are not more than 60 days past due or the validity of which is
being contested in good faith and, if necessary, by appropriate proceedings,
and for which adequate reserves are maintained on the books of any Restricted
Person in accordance with GAAP;


 


(f)  Liens on cash and Cash Equivalents under or
with respect to accounts with brokers or counterparties with respect to hedging
contracts consisting of cash, commodities or futures contracts, options,
securities, instruments, and other like assets securing only hedging contracts;


 


(g)  deposits of cash or securities to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(h)  easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of real property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which do not
in any case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of any Restricted
Person;


 


36

















 


(i)  Liens in respect of operating leases;


 


(j)  Liens upon any property or assets directly
or indirectly acquired after the date hereof by a Restricted Person, each of
which either (i) existed on such property or asset before the time of its
acquisition and was not created in anticipation thereof, or (ii) was created solely
for the purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of such
property or asset; provided that no such Lien shall extend to or cover any
property or asset of a Restricted Person other than the property or asset so
acquired (or constructed); and any extension, renewal, refinancing, refunding
or replacement (or successive extensions, renewals, refinancings, refundings or
replacements), in whole or part, of the foregoing, provided, however, that such
Liens shall not cover or secure any additional Indebtedness, obligations,
property or asset;


 


(k)  rights reserved to or vested in any
governmental authority by the terms of any right, power, franchise, grant,
license or permit, or by any provision of law, to revoke or terminate any such
right, power, franchise, grant, license or permit or to condemn or acquire by
eminent domain or similar process;


 


(l)  rights reserved to or vested by Law in any
governmental authority to in any manner, control or regulate in any manner any
of the properties of any Restricted Person or the use thereof or the rights and
interests of any Restricted Person therein, in any manner under any and all
Laws;


 


(m)  rights reserved to the grantors of any
properties of any Restricted Person, and the restrictions, conditions,
restrictive covenants and limitations, in respect thereto, pursuant to the
terms, conditions and provisions of any rights-of-way agreements, contracts or
other agreements therewith;


 


(n)  inchoate Liens in respect of pending
litigation or with respect to a judgment which has not resulted in an Event of
Default under Section 8.1;


 


(o)  Liens securing obligations in an aggregate
principal amount not to exceed at any time outstanding 10% of Borrower’s
Consolidated Tangible Net Worth; and


 


(p)  Liens related to the extension, renewal,
refinancing, refunding or replacement (or successive extensions, renewals,
refinancings, refundings or replacements), in whole or in part, of clauses (a),
(b) and (o) of this Section 7.2; provided, however, that such Liens shall not
cover or secure any additional Indebtedness.


 


Section 7.3.  Limitation on Mergers.  Except as expressly provided in this
section, no Significant Restricted Person (other than (i) a Guarantor for whom
a release has been requested pursuant to an event described in clause (b) of
Section 6.9 and otherwise is so released, or (ii) such other Significant
Restricted Person, other than Borrower, that is the subject of any such event
described in such clause (b) of Section 6.9) will (a) merge or consolidate
or amalgamate with any Person, or liquidate, wind up or dissolve or (b) sell,
transfer, lease, exchange or otherwise dispose of, in one transaction or a
series of related transactions, all or substantially all of its business or
property, whether now owned or hereafter acquired, to any Person; provided,


 


37

















 


any such Significant Restricted Person, other than Borrower, may (A)
merge into or consolidate or amalgamate with, and such business and property
may be disposed of to:


 


(i)  any other Subsidiary of
Borrower; provided, if such Significant Restricted Person or such
Subsidiary is a Guarantor, a Guarantor is the surviving or transferee (as applicable)
business entity,


 


(ii)  Borrower, so long as Borrower is the surviving or transferee
(as applicable) business entity and after giving effect thereto, no Default
exists, or


 


(iii) any other Person pursuant or incidental to, or in connection
with, any contemporaneous or substantially contemporaneous acquisition, provided
that for purposes of this clause (iii) such merging, amalgamating,
consolidating or transferor Significant Restricted Person is not Borrower,
Guarantor or a Wholly Owned Subsidiary of Borrower, other than a Wholly Owned
Subsidiary that was formed, acquired or created solely for purposes of such
acquisition or otherwise conducted no operations and owned no assets, other
than of an inconsequential amount and


 


(B) dissolve, liquidate or wind
up if such dissolution, liquidation and winding up results from dispositions
not prohibited by this Agreement.


 


Section 7.4.  Limitation on New Businesses.  No Restricted Person will materially or
substantially engage directly or indirectly in any business or conduct any
operations other than (i) marketing, gathering, transporting (by barge,
pipeline, ship, truck or other modes of hydrocarbon transportation),
terminalling, storing, producing, acquiring, developing, exploring for,
exploiting, producing, processing, dehydrating and otherwise handling
hydrocarbons, including, without limitation, constructing pipeline, platform,
dehydration, processing and other energy-related facilities, (ii) any other
business that generates gross income that constitutes “qualifying income” under
Section 7704(d) of the Internal Revenue Code of 1986, as amended, or (iii)
activities or services reasonably related or ancillary thereto including
entering into hedging obligations to support those businesses.


 


Section 7.5.  Transactions with Affiliates.  No Restricted Person will engage in any
material transaction with any of its Affiliates except as follows: (a)
transactions among Borrower and its Subsidiaries or between Subsidiaries of
Borrower; (b) if and to the extent any of them constitute transactions with
Affiliates, transactions governed by the Crude Oil Marketing Agreement among
Plains Resources Inc., Plains Illinois Inc., Stocker Resources, L.P., Arguello
Inc., Calumet Florida Inc. (and successors of each) and Plains Marketing dated
November 23, 1998 or the Omnibus Agreement between Plains Resources Inc.,
Borrower, Plains Marketing, All American and Plains All American Inc. (and
successors of each) dated November 23, 1998, as amended and in effect;
(c) any employment, equity award, equity option or equity appreciation
agreement or plan entered into by Borrower or any of its Subsidiaries in the
ordinary course of business of Borrower or such Subsidiary;
(d) transactions effected in accordance with the terms of agreements as in
effect on the closing date hereof; (e) customary compensation, indemnification
and other benefits made available to officers, directors or employees of
Borrower, any of its Subsidiaries or GP LLC, including reimbursement or
advancement of out-of-pocket expenses and provisions of officers’ and
directors’ liability insurance; (f) transactions as contemplated by Borrower’s
agreement of limited partnership; and (g) transactions on terms


 


38

















 


which are no less favorable to such Restricted Person than those which
would have been obtainable at the time in arm’s-length transactions with
Persons other than such Affiliates.


 


Section 7.6.  Limitation on Distributions.  Borrower shall not declare or pay any
Distribution so long as any Default or Event of Default has occurred and is
continuing or would result therefrom.


 


Section 7.7.  Restricted Contracts.  Except as expressly provided for in the Loan
Documents and as described in the Disclosure Schedule or pursuant to a
Restriction Exception, the substance of which, in detail satisfactory to
Administrative Agent, is promptly reported to Administrative Agent, no
Restricted Person will, directly or indirectly, enter into, create, or
otherwise allow to exist any contract or other consensual restriction on the
ability of any Subsidiary of Borrower to: 
(a) pay dividends or make other distributions to Borrower,
(b) redeem equity interests held in it by Borrower, (c) repay loans
and other indebtedness owing by it to Borrower, or (d) transfer any of its
assets to Borrower.


 


Section 7.8.  Debt Coverage Ratio.  At the end of any Fiscal Quarter, the Debt
Coverage Ratio will not be greater than the amount set forth below for the
applicable time set forth below:


 


	
  (i) During
  an Acquisition Period:

  	
   

  	
  5.25 to 1.0

  
	
   

  	
   

  	
   

  
	
  (ii) Other
  than an Acquisition Period:

  	
   

  	
  4.50 to 1.0

  



 


As used herein, “Debt
Coverage Ratio” means the ratio of (a) Consolidated Funded Indebtedness to
(b) Consolidated EBITDA, for the four Fiscal Quarter period (or other period
specified below) most recently ended prior to the date of determination for
which financial statements contemplated by Section 6.2(a) or (b) are available
to Borrower; provided, for purposes of this Section 7.8, if, since the
beginning of the four Fiscal Quarter period ending on the date for which
Consolidated EBITDA is determined, any Restricted Person shall have made any
asset disposition or acquisition, shall have consolidated or merged with or
into any Person (other than another Restricted Person), or shall have made any
disposition or acquisition of a Restricted Person or disposition or acquisition
of any partial ownership interest in any other Person, Consolidated EBITDA
shall be calculated giving pro forma effect thereto as if the disposition, acquisition,
consolidation or merger had occurred on the first day of such period; provided,
with respect to any Person not constituting a Subsidiary of Borrower, such pro
forma calculation of Consolidated EBITDA, with respect to any such Person,
shall be limited to not more than 75% of (i) such Restricted Person’s ownership
interest in such Person times (ii) the difference of such Person’s (A)
Consolidated EBITDA minus (B) Interest Expense and capital
expenditures.  Such pro forma
calculations shall be determined (i) in good faith by the chief financial
officer of Borrower, and (ii) without giving effect to any anticipated or
proposed change in operations, revenues, expenses or other items included in
the computation of Consolidated EBITDA, except cost reductions specifically
identified at the time of disposition, acquisition, consolidation or merger
that are attributable to personnel reductions, non-recurring maintenance and
environmental costs and allocated corporate overhead.


 


Section 7.9.  Interest Coverage Ratio.  The ratio of (a) Consolidated EBITDA to
(b) Interest Expense for each four Fiscal Quarter period ending on or
after the date hereof will not be less than 2.75 to 1.0.


 


39

















 


Section 7.10.  Unrestricted Subsidiaries.  So long as no Default or Event of Default
has occurred and is continuing, and after giving effect to such designation, no
Default or Event of Default would result therefrom, Borrower or any Wholly
Owned Subsidiary of Borrower may designate one or more Subsidiaries that are
not Guarantors (each such Subsidiary, and each of its Subsidiaries, each an “Unrestricted
Subsidiary”), which Unrestricted Subsidiaries shall be subject to the
following:


 


(a)                                  No
Unrestricted Subsidiary shall be deemed to be a “Restricted Person” or a
“Subsidiary” of Borrower for purposes of this Agreement or any other Loan
Document, and no Unrestricted Subsidiary shall be subject to or included within
the scope of any provision herein or in any other Loan Document, including
without limitation any representation, warranty, covenant or Event of Default
herein or in any other Loan Document, except as set forth in this
Section 7.10.


 


(b)                                 No
Restricted Person shall guarantee or otherwise become liable in respect of any
Indebtedness of, grant any Lien on any of its property to secure any
Indebtedness of or other obligation of, or provide any other form of credit
support to, any Unrestricted Subsidiary, and no Restricted Person shall enter
into any contract or agreement with any Unrestricted Subsidiary, except on
terms no less favorable to such Restricted Person, as applicable, than could be
obtained in a comparable arm’s length transaction with a non-Affiliate of such
Restricted Person.


 


(c)                                  Borrower
shall at all times maintain, as between Restricted Persons and Unrestricted
Subsidiaries, the separate existence of each Unrestricted Subsidiary.


 


(d)                                 Restricted
Persons shall notify each Lender Party, not later than five (5) Business Days
after any executive officer of Restricted Persons has knowledge of, any claim,
including any claim under any Environmental Law, or any notice of potential
liability under any Environmental Law, asserted against any Unrestricted
Subsidiary or with respect to any Unrestricted Subsidiary’s properties that
would be expected to result in a Material Adverse Change, stating that such
notice is being given pursuant to this Section 7.10.


 


Borrower may
designate any Unrestricted Subsidiary to become a Restricted Person if a
Default or Event of Default is not continuing, such designation would not
result in a Default or an Event of Default, and immediately thereafter such
Subsidiary has no outstanding Indebtedness. 
Immediately thereafter, Borrower shall promptly notify the
Administrative Agent of such designation and provide to it an officer’s
certificate that such designation was made in compliance with this Section
7.10.


 


Section 7.11.  No Negative Pledges.  Except as described in the Disclosure
Schedule or pursuant to a Restriction Exception, the substance of which, in
detail satisfactory to Administrative Agent, is promptly reported to
Administrative Agent, no Restricted Person will, directly or indirectly, enter
into, create, or consent to be bound to any contract or other consensual
restriction that restricts the ability of any Restricted Person to create or
maintain Liens on its assets in favor of Administrative Agent and Lenders to
secure, in whole or part, the Obligations.


 


40

















 


ARTICLE VIII
- Events of Default and Remedies


 


Section 8.1.  Events of Default.  Each of the following events constitutes an
Event of Default under this Agreement:


 


(a)  Borrower fails to pay the principal
component of any Loan made to it when due and payable, whether at a date for the
payment of a fixed installment or as a contingent or other payment becomes due
and payable or as a result of acceleration or otherwise;


 


(b)  Any Restricted Person fails to pay any
Obligation for which it is contractually liable (other than the Obligations in
subsection (a) above) when due and payable, whether at a date for the payment
of a fixed installment or as a contingent or other payment becomes due and
payable or as a result of acceleration or otherwise, within three Business Days
after the same becomes due;


 


(c)  Any Restricted Person fails to duly observe,
perform or comply with any covenant, agreement or provision of Section 6.4 or
Article VII;


 


(d)  Any Restricted Person fails (other than as
referred to in subsections (a), (b) or (c) above) to duly observe, perform or
comply with any of its obligations under any covenant, agreement, condition or
provision of any Loan Document to which it is a party, and such failure remains
unremedied for a period of thirty (30) days after notice of such failure is
given by Administrative Agent to Borrower;


 


(e)  Any representation or warranty previously,
presently or hereafter made in writing by or on behalf of any Restricted Person
in connection with any Loan Document shall prove to have been false or incorrect
in any material respect on any date on or as of which made, or any Loan
Document at any time ceases to be valid, binding and enforceable as warranted
in Section 5.5 for any reason other than its release or subordination by
Administrative Agent;


 


(f)  Any Restricted Person shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness, or any net hedging obligations in excess of $15,000,000 in the
aggregate (other than such Indebtedness or hedging obligations the validity of
which is being contested in good faith, by appropriate proceedings (if
necessary) and for which adequate reserves with respect thereto are maintained
on the books of such Restricted Person as required by GAAP), or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness or hedging obligations shall occur for a
period beyond the applicable grace, cure extension, forbearance or other
similar period, if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit the holder or holders of
such Indebtedness or hedging obligations (or a trustee or agent on behalf of
such holder or holders) to cause, as applicable, such Indebtedness to become due,
or to be prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity, or an early termination event or
similar event to occur and such Restricted Person’s related net hedging
obligations in excess of the Dollar Equivalent of $15,000,000 to become due and
payable;


 


(g)  Either (i) any “accumulated funding
deficiency” (as defined in Section 
412(a) of the Code) in excess of $5,000,000 exists with respect to any
ERISA Plan, whether or not waived by the Secretary of the Treasury or his
delegate, or (ii) any Termination Event occurs with respect to any ERISA Plan
and the then current value of such ERISA Plan’s benefit liabilities exceeds the


 


41

















 


then current value of such ERISA Plan’s assets available for the
payment of such benefit liabilities by more than $5,000,000 (or in the case of
a Termination Event involving the withdrawal of a substantial employer, the
withdrawing employer’s proportionate share of such excess exceeds such amount);


 


(h)  GP LLC, General Partner, or any Significant
Restricted Person:


 


(i)  has entered against it a
judgment, decree or order for relief by a Tribunal of competent jurisdiction in
an involuntary proceeding commenced under any applicable bankruptcy, insolvency
or other similar Law of any jurisdiction now or hereafter in effect, including
the federal Bankruptcy Code, as from time to time amended, or has any such
proceeding commenced against it, in each case, which remains undismissed for a
period of sixty days; or


 


(ii)  commences a voluntary case
under any applicable bankruptcy, insolvency or similar Law now or hereafter in
effect, including the federal Bankruptcy Code, as from time to time amended; or
applies for or consents to the entry of an order for relief in an involuntary
case under any such Law; or makes a general assignment for the benefit of
creditors; or is generally unable to pay (or admits in writing its inability to
so pay) its debts as such debts become due; or takes corporate or other action
to authorize any of the foregoing; or


 


(iii)  has entered against it
the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of all or a substantial
part of its assets in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor discharged
within sixty days after the making thereof, or such appointment or taking
possession is at any time consented to, requested by, or acquiesced to by it;
or


 


(i)  Any Significant Restricted Person:


 


(i)  has entered against it a
final judgment for the payment of money in excess of $15,000,000 (in each case
not covered by insurance satisfactory to Administrative Agent in its
discretion), unless the same is stayed or discharged within thirty days after
the date of entry thereof (or longer period for which a stay of enforcement is
allowed by applicable Law) or an appeal or appropriate proceeding for review
thereof is taken within such period and a stay of execution pending such appeal
is obtained; or


 


(ii)  suffers a writ or warrant
of attachment or any similar process to be issued by any Tribunal against all
or any substantial part of its assets, and such writ or warrant of attachment
or any similar process is not stayed or released within sixty days after the
entry or levy thereof (or longer period for which a stay of enforcement is
allowed by applicable Law) or after any stay is vacated or set aside;


 


(j) 
Any Change in Control occurs.


 


Upon the occurrence of an Event
of Default described in subsection (h)(i), (h)(ii) or (h)(iii) of this section:
all Obligations shall thereupon be immediately due and payable, without demand,


 


42

















 


presentment, notice of demand
or of dishonor and nonpayment, protest, notice of protest, notice of intention
to accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by Borrower
and each Restricted Person who at any time ratifies or approves this
Agreement.  Upon any such acceleration,
any obligation of any Lender to make any further Loans shall be permanently
terminated.  During the continuance of
any other Event of Default, Administrative Agent at any time and from time to
time may (and upon written instructions from Majority Lenders, Administrative
Agent shall), without notice to Borrower or any other Restricted Person, do
either or both of the following:  (1) terminate or suspend any obligation of Lenders to make
Loans hereunder, and (2) declare any or all of the Obligations immediately due
and payable, and all such Obligations shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate,
declaration or notice of acceleration, or any other notice or declaration of
any kind, all of which are hereby expressly waived by Borrower and each
Restricted Person who at any time ratifies or approves this Agreement.


 


Section 8.2.  Remedies.  If any Default shall occur and be continuing, each Lender Party
may protect and enforce its rights under the Loan Documents by any appropriate
proceedings, including proceedings for specific performance of any covenant or
agreement contained in any Loan Document, and each Lender Party may enforce the
payment of any Obligations due it or enforce any other legal or equitable right
which it may have.  All rights, remedies
and powers conferred upon Lender Parties under the Loan Documents shall be
deemed cumulative and not exclusive of any other rights, remedies or powers
available under the Loan Documents or at Law or in equity.


 


ARTICLE IX
- Administrative Agent


 


Section 9.1.  Appointment and Authority. Each
Lender Party hereby irrevocably authorizes Administrative Agent, and
Administrative Agent hereby undertakes, to receive payments of principal,
interest and other amounts due hereunder as specified herein and to take all
other actions and to exercise such powers under the Loan Documents as are
specifically delegated to Administrative Agent by the terms hereof or thereof,
together with all other powers reasonably incidental thereto.  The relationship of Administrative Agent to
the other Lender Parties is only that of one commercial lender acting as
administrative agent for others, and nothing in the Loan Documents shall be
construed to constitute Administrative Agent a trustee or other fiduciary for
any Lender Party or any holder of any participation in a Note nor to impose on
Administrative Agent duties and obligations other than those expressly provided
for in the Loan Documents.  With respect
to any matters not expressly provided for in the Loan Documents and any matters
which the Loan Documents place within the discretion of Administrative
Agent,  Administrative Agent shall not
be required to exercise any discretion or take any action, and it may request
instructions from Lenders with respect to any such matter, in which case it
shall be required to act or to refrain from acting (and shall be fully
protected and free from liability to all Lender Parties in so acting or
refraining from acting) upon the instructions of Majority Lenders (including
itself), provided, however, that Administrative Agent shall not be required to
take any action which exposes it to a risk of personal liability that it
considers unreasonable or which is contrary to the Loan Documents or to
applicable Law.  Upon receipt by
Administrative Agent from Borrower of any communication calling for action on
the part of Lenders or upon notice


 


43

















 


from Borrower or any Lender to Administrative Agent of any Default or
Event of Default, Administrative Agent shall promptly notify each other Lender
thereof.


 


Section 9.2.  Exculpation, Administrative Agent’s
Reliance, Etc.  Neither
Administrative Agent nor any of its directors, officers, agents, attorneys, or
employees shall be liable for any action taken or omitted to be taken by any of
them under or in connection with the Loan Documents, including their negligence of any kind,
except that each shall be liable for its own gross negligence or willful
misconduct.  Without limiting the
generality of the foregoing, Administrative Agent (a) may treat the payee of
any Note as the holder thereof until Administrative Agent receives written
notice of the assignment or transfer thereof in accordance with this Agreement,
signed by such payee and in form satisfactory to Administrative Agent; (b) may
consult with legal counsel (including counsel for Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any other Lender Party and shall not be responsible to any
other Lender Party for any statements, warranties or representations made in or
in connection with the Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms,
covenants or conditions of the Loan Documents on the part of any Restricted
Person or to inspect the property (including the books and records) of any
Restricted Person; (e) shall not be responsible to any other Lender Party for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any instrument or document furnished in
connection therewith; (f) may rely upon the representations and warranties of
each Restricted Person or Lender Party in exercising its powers hereunder; and
(g) shall incur no liability under or in respect of the Loan Documents by
acting upon any notice, consent, certificate or other instrument or writing
(including any facsimile, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper Person or Persons.


 


Section 9.3.  Credit Decisions.  Each Lender Party acknowledges that it has,
independently and without reliance upon any other Lender Party, made its own
analysis of Borrower and the transactions contemplated hereby and its own
independent decision to enter into this Agreement and the other Loan Documents.  Each Lender Party also acknowledges that it
will, independently and without reliance upon any other Lender Party and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents.


 


Section
9.4.  Indemnification.  Each
Lender agrees to indemnify Administrative Agent (to the extent not reimbursed
by Borrower within ten (10) days after demand) from and against such Lender’s
Percentage Share of any and all liabilities, obligations, claims, losses,
damages, penalties, fines, actions, judgments, suits, settlements, costs,
expenses or disbursements (including reasonable fees of attorneys, accountants,
experts and advisors) of any kind or nature whatsoever (in this section
collectively called “liabilities and costs”) which to any extent (in whole or
in part) may be imposed on, incurred by, or asserted against Administrative
Agent growing out of, resulting from or in any other way associated with the
Loan Documents and the transactions and events (including the enforcement
thereof) at any time associated therewith or contemplated therein and
Borrower’s use of loan proceeds (whether arising in


 


44

















 


contract or in tort
or otherwise and including any violation or noncompliance with any
Environmental Laws by any Person or any liabilities or duties of any Person
with respect to Hazardous Materials found in or released into the environment).


 


The foregoing indemnification shall apply
whether or not such liabilities and costs are in any way or to any extent owed,
in whole or in part, under any claim or theory of strict liability or caused,
in whole or in part, by any negligent act or omission of any kind by
Administrative Agent, provided only that no Lender
shall be obligated under this section to indemnify Administrative Agent for
that portion, if any, of any liabilities and costs which is proximately caused
by Administrative Agent’s own individual gross negligence or willful misconduct,
as determined in a final judgment. 
Cumulative of the foregoing, each Lender agrees to reimburse
Administrative Agent promptly upon demand for such Lender’s Percentage Share of
any costs and expenses to be paid to Administrative Agent by Borrower under
Section 10.4(a) to the extent that Administrative Agent is not timely
reimbursed for such expenses by Borrower as provided in such section.  As used in this section the term
“Administrative Agent” shall refer not only to the Persons designated as such
in Section 1.1 but also to each director, officer, agent, attorney,
employee, representative and Affiliate of such Person.


 


Section 9.5.  Rights as Lender.  In its capacity as a Lender, Administrative
Agent shall have the same rights and obligations as any Lender and may exercise
such rights as though it were not Administrative Agent.  Administrative Agent may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage
in any kind of business with any Restricted Person or their Affiliates, all as
if it were not Administrative Agent hereunder and without any duty to account
therefor to any other Lender.


 


Section 9.6.  Sharing of Set-Offs and Other Payments.  Each Lender Party agrees that if it shall,
whether through the exercise of rights of banker’s lien, set off, or
counterclaim against Borrower or otherwise, obtain payment of a portion of the
aggregate Obligations owed to it which, taking into account all distributions
made by Administrative Agent under Section 3.1, causes such Lender Party to
have received more than it would have received had such payment been received
by Administrative Agent and distributed pursuant to Section 3.1, then (a) it
shall be deemed to have simultaneously purchased and shall be obligated to purchase
interests in the Obligations as necessary to cause all Lender Parties to share
all payments as provided for in Section 3.1, and (b) such other adjustments
shall be made from time to time as shall be equitable to ensure that
Administrative Agent and all Lender Parties share all payments of Obligations
as provided in Section 3.1; provided, however, that nothing herein contained
shall in any way affect the right of any Lender Party to obtain payment
(whether by exercise of rights of banker’s lien, set-off or counterclaim or
otherwise) of indebtedness other than the Obligations.  Borrower expressly consents to the foregoing
arrangements, subject to Section 10.9. 
If all or any part of any funds transferred pursuant to this section is
thereafter recovered from the seller under this section which received the
same, the purchase provided for in this section shall be deemed to have been
rescinded to the extent of such recovery, together with interest, if any, if
interest is required pursuant to the order of a Tribunal to be paid on account
of the possession of such funds prior to such recovery.


 


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Section 9.7.  Investments.  Whenever Administrative Agent in good faith
determines that it is uncertain about how to distribute to Lender Parties any
funds which it has received, or whenever Administrative Agent in good faith
determines that there is any dispute among Lender Parties about how such funds
should be distributed, Administrative Agent may choose to defer distribution of
the funds which are the subject of such uncertainty or dispute.  If Administrative Agent in good faith
believes that the uncertainty or dispute will not be promptly resolved, or if
Administrative Agent is otherwise required to invest funds pending distribution
to Lender Parties, Administrative Agent shall invest such funds pending
distribution; all interest on any such Investment shall be distributed upon the
distribution of such Investment and in the same proportion and to the same
Persons as such Investment.  All moneys
received by Administrative Agent for distribution to Lender Parties (other than
to the Person who is Administrative Agent in its separate capacity as a Lender
Party) shall be held by Administrative Agent pending such distribution solely
as Administrative Agent for such Lender Parties, and Administrative Agent shall
have no equitable title to any portion thereof.


 


Section 9.8.  Benefit of Article IX.  The provisions of this Article are intended
solely for the benefit of Lender Parties, and no Restricted Person shall be
entitled to rely on any such provision or assert any such provision in a claim
or defense against any Lender (other than contained in Section 9.6 or the right
to reasonably approve a successor Administrative Agent under Section 9.9).  Lender Parties may waive or amend such
provisions as they desire without any notice to or consent of Borrower or any
other Restricted Person.


 


Section 9.9.  Resignation.  Administrative Agent may resign at any time
by giving written notice thereof to Lenders and Borrower.  Each such notice shall set forth the date of
such resignation.  Upon any such
resignation Majority Lenders shall have the right to appoint a successor
Administrative Agent, subject to the approval of Borrower, unless a Default has
occurred and is continuing, which approval will not be unreasonably
withheld.  A successor must be appointed
for any retiring Administrative Agent, and such Administrative Agent’s
resignation shall become effective when such successor accepts such
appointment.  If, within thirty days
after the date of the retiring Administrative Agent’s resignation, no successor
Administrative Agent has been appointed and has accepted such appointment, then
the retiring Administrative Agent may appoint a successor Administrative Agent,
which shall be a commercial bank organized or licensed to conduct a banking or
trust business under the Laws of the United States of America or of any state
thereof.  Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement and the other Loan Documents.  After any retiring Administrative Agent’s
resignation hereunder the provisions of this Article IX shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under the Loan Documents.


 


Section 9.10.  Other Agents.  Neither the Co-Syndication Agents nor the
Co-Documentation Agent (“Co-Agents”), in such capacities, shall have any
duties or responsibilities or incur any liabilities in such agency capacities
(as opposed to its capacity as a Lender) under or in connection with this
Agreement or under any of the other Loan Documents.  The relationship between Borrower on the one hand, and the
Co-Agents and the Agents, on the other hand, shall be solely that of borrower
and lender. None of the Co-Agents shall have any fiduciary responsibilities to
Borrower or any of their respective Affiliates.  None of the Co-Agents undertakes any responsibility to Borrower
or any of their respective Affiliates to review or inform


 


46

















 


any such Person of any matter in connection with any phase of such
Person’s or such Affiliate’s business or operations.


 


ARTICLE X
- Miscellaneous


 


Section 10.1.  Waivers and Amendments; Acknowledgments.


 


(a)  Waivers and Amendments.  No failure or delay (whether by course of
conduct or otherwise) by any Lender in exercising any right, power or remedy
which such Lender Party may have under any of the Loan Documents shall operate
as a waiver thereof or of any other right, power or remedy, nor shall any
single or partial exercise by any Lender Party of any such right, power or
remedy preclude any other or further exercise thereof or of any other right,
power or remedy.  No waiver of any
provision of any Loan Document and no consent to any departure therefrom shall
ever be effective unless it is in writing and signed as provided below in this
section, and then such waiver or consent shall be effective only in the
specific instances and for the purposes for which given and to the extent
specified in such writing.  This Agreement
and the other Loan Documents set forth the entire understanding between the
parties hereto with respect to the transactions contemplated herein and therein
and supersede all prior discussions and understandings with respect to the
subject matter hereof and thereof, and no waiver, consent, release,
modification or amendment of or supplement to this Agreement or the other Loan
Documents shall be valid or effective against any party hereto unless the same
is in writing and signed by (i) if such party is Borrower, by Borrower, (ii) if
such party is Administrative Agent, by Administrative Agent, and (iii) if such
party is a Lender, by such Lender or by Administrative Agent on behalf of
Lenders with the written consent of Majority Lenders (which consent has already
been given as to the termination of the Loan Documents as provided in Section
10.10).  Notwithstanding the foregoing
or anything to the contrary herein, Administrative Agent shall not, without the
prior consent of each individual Lender, execute and deliver on behalf of such
Lender any waiver or amendment which would: 
(1) waive any of the conditions specified in Article IV (provided that
Administrative Agent may in its discretion withdraw any request it has made
under Section 4.1(i)), (2) increase the maximum amount which such Lender
is committed hereunder to lend, or extend the termination date of such Lender’s
commitment to lend, (3) reduce any fees payable to such Lender hereunder, or
the principal of, or interest on, such Lender’s Note, (4) change any date
fixed for any payment of any such fees, principal or interest, or change
Section 9.6 in a manner that would alter pro rata sharing of payments required
thereby, (5) amend the definition herein of “Majority Lenders” or otherwise
change the Percentage Shares which are required for Administrative Agent,
Lenders or any of them to take any particular action under the Loan Documents,
or (6) except as expressly provided herein or in any other Loan Document,
release (i) Borrower from its obligation to pay such Lender’s Note, (ii) any
Guarantor from its guaranty of such payment or (iii) any Restricted Person from
the negative pledge covenant set forth in Section 7.11 hereof.


 


(b)  Acknowledgments and Admissions.  Borrower hereby represents, warrants,
acknowledges and admits that  (i) it has
been advised by counsel in the negotiation, execution and delivery of the Loan
Documents to which it is a party, (ii) no Lender Party has any fiduciary
obligation toward Borrower with respect to any Loan Document or the
transactions contemplated thereby, (iii) the relationship pursuant to the Loan
Documents between Borrower and the other Restricted Persons, on one hand, and
each Lender Party, on the other hand, is and


 


47

















 


shall be solely that of debtor and creditor, respectively, and (iv) no
partnership or joint venture exists with respect to the Loan Documents between
any Restricted Person and any Lender Party.


 


(c)  Representation by Lenders.  Each Lender hereby represents that it will
acquire its Notes for its own account in the ordinary course of its commercial
lending or investing business; however, the disposition of such Lender’s
property shall at all times be and remain within its control and, in particular
and without limitation, such Lender may sell or otherwise transfer its Note,
any participation interest or other interest in its Note, or any of its other
rights and obligations under the Loan Documents subject to compliance with
Sections 10.5(b) through (f), inclusive, and applicable Law.


 


(d)  Joint Acknowledgment.  This
written Agreement and the other Loan Documents represent the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.


 


There are no
unwritten oral agreements between the parties.


 


Section 10.2.  Survival of Agreements; Cumulative Nature.  All of Restricted Persons’ various
representations, warranties, covenants and agreements in the Loan Documents
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the performance hereof and thereof, including the making or
granting of the Loans and the delivery of the Notes and the other Loan
Documents, and shall further survive until all of the Obligations are paid in
full to each Lender Party and all of Lender Parties’ obligations to Borrower
are terminated.  The rights, powers, and
privileges granted to Lender Parties in the Loan Documents, are cumulative,
and, except for expressly specified waivers and consents, no Loan Document
shall be construed in the context of another to diminish, nullify, or otherwise
reduce the benefit to any Lender Party of any such right, power or privilege.


 


Section 10.3.  Notices.  All notices, requests, consents, demands and other communications
required or permitted under any Loan Document shall be in writing, unless
otherwise specifically provided in such Loan Document (provided that
Administrative Agent may give telephonic notices to the other Lender Parties),
and shall be deemed sufficiently given or furnished if delivered by personal
delivery, by facsimile or other electronic transmission, by delivery service
with proof of delivery, or by registered or certified United States mail,
postage prepaid, to Borrower and Restricted Persons at the address of Borrower
specified on the signature pages hereto and to each Lender Party at its address
specified on the signature pages hereto (unless changed by similar notice in
writing given by the particular Person whose address is to be changed).  Any such notice or communication shall be
deemed to have been given (a) in the case of personal delivery or delivery
service, as of the date of first attempted delivery during normal business
hours at the address provided herein, (b) in the case of facsimile or other
electronic transmission, upon receipt, or (c) in the case of registered or
certified United States mail, three days after deposit in the mail; provided,
however, that no Borrowing Notice or Continuation/Conversion Notice shall
become effective until actually received by Administrative Agent.


 


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Section 10.4.  Payment of Expenses; Indemnity.


 


(a)  Payment of Expenses.  Whether or not the transactions contemplated
by this Agreement are consummated, Borrower will promptly (and in any event,
within 30 days after any invoice or other statement or notice) pay: (i) all
transfer, stamp, mortgage, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Loan Documents or any other document referred to
herein or therein, (ii) all reasonable costs and expenses incurred by or on
behalf of Administrative Agent (including attorneys’ fees, consultants’ fees
and engineering fees, travel costs and miscellaneous expenses) in connection
with (1) the negotiation, preparation, execution and delivery of the Loan
Documents, and any and all consents, waivers or other documents or instruments
relating thereto, (2) the filing, recording, refiling and re-recording of any
Loan Documents and any other documents or instruments or further assurances
required to be filed or recorded or refiled or re-recorded by the terms of any
Loan Document, (3) the borrowings hereunder and other action reasonably
required in the course of administration hereof, (4) monitoring or confirming
(or preparation or negotiation of any document related to) Borrower’s
compliance with any covenants or conditions contained in this Agreement or in
any Loan Document, and (iii) all reasonable costs and expenses incurred by or
on behalf of any Lender Party (including attorneys’ fees, consultants’ fees and
accounting fees) in connection with the defense or enforcement of any of the
Loan Documents (including this section) or the defense of any Lender Party’s
exercise of its rights thereunder.  In
addition to the foregoing, until all Obligations have been paid in full,
Borrower will also pay or reimburse Administrative Agent for all reasonable
out-of-pocket costs and expenses of Administrative Agent or its agents or
employees in connection with the continuing administration of the Loans and the
related due diligence of Administrative Agent, including travel and
miscellaneous expenses and fees and expenses of Administrative Agent’s outside
counsel and consultants engaged in connection with the Loan Documents.


 


(b)  Indemnity.  Borrower agrees to indemnify each Lender Party, upon demand, from
and against any and all liabilities, obligations, claims, losses, damages,
penalties, fines, actions, judgments, suits, settlements, costs, expenses or
disbursements (including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this section collectively called
“liabilities and costs”) which to any extent (in whole or in part) may be
imposed on, incurred by, or asserted against such Lender Party growing out of,
resulting from or in any other way associated with the Loan Documents and the
transactions and events (including the enforcement or defense thereof) at any
time associated therewith or contemplated therein and Borrower’s use of Loan
proceeds (whether arising in contract or in tort or otherwise and including any
violation or noncompliance with any Environmental Laws by any Lender Party or any
other Person or any liabilities or duties of any Lender Party or any other
Person with respect to Hazardous Materials found in or released into the
environment).


 


The foregoing indemnification shall apply
whether or not such liabilities and costs are in any way or to any extent owed,
in whole or in part, under any claim or theory of strict liability or caused,
in whole or in part, by any negligent act or omission of any kind by any Lender
Party, provided only that no Lender Party shall be
entitled under this section to receive indemnification for that portion, if
any, of any liabilities and costs which is proximately caused by its own
individual gross negligence or willful misconduct, as determined in a final
judgment.  If any Person (including
Borrower or any of its Affiliates) ever alleges such gross negligence or
willful misconduct by any Lender Party, the


 


49

















 


indemnification provided for in
this section shall nonetheless be paid upon demand, subject to later adjustment
or reimbursement, until such time as a court of competent jurisdiction enters a
final judgment as to the extent and effect of the alleged gross negligence or
willful misconduct.  As used in this section
the term “Lender Party” shall refer not only to each Person designated as such
in Section 1.1 but also to each director, officer, trustee, agent, attorney,
employee, representative and Affiliate of such Persons.


 


(c)  Interest.  Borrower hereby promises to each Lender Party interest at the Default
Rate on all Obligations to pay fees or to reimburse or indemnify any Lender
Party which Borrower has promised to pay to such Lender Party pursuant to this
Section 10.4 and which are not paid when due. 
Such interest shall accrue from the date such Obligations become due
until they are paid.


 


Section 10.5.  Joint and Several Liability; Parties in
Interest; Assignments; Replacement Notes.


 


(a)  All Obligations which are incurred by two or
more Restricted Persons shall be their joint and several obligations and
liabilities of such Restricted Persons. 
All grants, covenants and agreements contained in the Loan Documents
shall bind and inure to the benefit of the parties thereto and their respective
successors and permitted assigns; provided, however, that no Restricted Person
may assign or transfer any of its rights or delegate any of its duties or
obligations under any Loan Document without the prior consent of all
Lenders.  Neither Borrower nor any
Affiliates of Borrower shall directly or indirectly purchase or otherwise
retire any Obligations owed to any Lender nor will any Lender accept any offer
to do so, unless each Lender shall have received substantially the same offer
with respect to the same Percentage Share of the Obligations owed to it.  If Borrower or any Affiliate of Borrower at
any time purchases some but less than all of the Obligations owed to all Lender
Parties, such purchaser shall not be entitled to any rights of any Lender under
the Loan Documents unless and until Borrower or its Affiliates have purchased
all of the Obligations.


 


(b)  No Lender shall sell any participation
interest in its commitment hereunder or any of its rights under its Loans or
under the Loan Documents to any Person unless the agreement between such Lender
and such participant at all times provides: (i) that such participation exists
only as a result of the agreement between such participant and such Lender and
that such transfer does not give such participant any right to vote as a Lender
or any other direct claims or rights against any Person other than such Lender,
(ii) that such participant is not entitled to payment from any Restricted
Person under Sections 3.2 through 3.6 of amounts in excess of those payable to
such Lender under such sections (determined without regard to the sale of such
participation), and (iii) unless such participant is an Affiliate of such
Lender, that such participant shall not be entitled to require such Lender to
take any action under any Loan Document or to obtain the consent of such participant
prior to taking any action under any Loan Document, except for actions which
would require the consent of all Lenders under subsection (a) of Section
10.1.  No Lender selling such a
participation shall, as between the other parties hereto and such Lender, be
relieved of any of its obligations hereunder as a result of the sale of such
participation.  Each Lender which sells
any such participation to any Person (other than an Affiliate of such Lender)
shall give prompt notice thereof to Administrative Agent and Borrower;
provided, however, that no liability shall arise if any such Lender fails to
give such notice to Borrower.


 


50

















 


(c)  Except for sales of participations under the
immediately preceding subsection, no Lender shall make any assignment or
transfer of any kind of its commitments or any of its rights under its Loans or
under the Loan Documents, except for assignments to an Eligible Transferee or,
subject to the provisions of subsection (g) below, to an affiliate, and then
only if such assignment is made in accordance with the following requirements:


 


(i)  In the case of an
assignment by a Lender of less than all of its Loans and Commitment, each such
assignment shall apply to a consistent percentage of all Loans owing to the
assignor Lender hereunder and to the same percentage of the unused portion of
the assignor Lender’s Commitment, so that after such assignment is made both
the assignee Lender and the assignor Lender shall have a fixed (and not a
varying) Percentage Share in its Loans and be committed to make that Percentage
Share of all future Loans and the Percentage Share of such Commitment of each
of the assignor and assignee shall equal or exceed $5,000,000.


 


(ii)  The parties to each such
assignment shall execute and deliver to Administrative Agent, for its
acceptance and recording in the “Register” (as defined below in this section),
an Assignment and Acceptance in the form of Exhibit F, appropriately completed,
together with the Note subject to such assignment and a processing fee payable
by such assignor Lender (and not at Borrower’s expense) to Administrative Agent
of $3,500.  Upon such execution,
delivery, and payment and upon the satisfaction of the conditions set out in
such Assignment and Acceptance, then (i) Borrower shall issue new Notes to
such assignor and assignee upon return of the old Notes to Borrower, and (ii)
as of the “Settlement Date” specified in such Assignment and Acceptance the
assignee thereunder shall be a party hereto and a Lender hereunder and
Administrative Agent shall thereupon deliver to Borrower and each Lender a
revised Schedule 1 hereto showing the revised Percentage Shares and total
Percentage Shares of such assignor Lender and such assignee Lender and the revised
Percentage Shares and total Percentage Shares of all other Lenders.


 


(iii)  Each assignee Lender
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, shall (to the extent
it has not already done so) provide Administrative Agent and Borrower with the
“Prescribed Forms” referred to in Section 3.7(d).


 


(d) 
Any Lender may at any time pledge all or any portion of its Loan and
Note (and related rights under the Loan Documents including any portion of its
Note) to any of the twelve (12) Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341.  No such pledge or enforcement thereof shall release any such
Lender from its obligations under any of the Loan Documents; provided that all
related costs, fees and expenses in connection with any such pledge shall be
for the sole account of such Lender.


 


(e) 
By executing and delivering an Assignment and Acceptance, each assignee
Lender thereunder will be confirming to and agreeing with Borrower,
Administrative Agent and each other Lender Party that such assignee understands
and agrees to the terms hereof, including Article IX hereof.


 


51

















 


(f) 
Administrative Agent shall maintain a copy of each Assignment and
Acceptance and a register for the recordation of the names and addresses of
Lenders and the Percentage Shares of, and principal amount of the Loans owing
to, each Lender from time to time (in this section called the “Register”).  The entries in the Register shall be
conclusive, in the absence of manifest error, and Borrower and each Lender
Party may treat each Person whose name is recorded in the Register as a Lender
Party hereunder for all purposes.  The
Register shall be available for inspection by Borrower or any Lender Party at
any reasonable time and from time to time upon reasonable prior notice.


 


(g) 
Any Lender may assign or transfer its commitment or its rights under its
Loans or under the Loan Documents to (i) any Affiliate that is
wholly-owned direct or indirect subsidiary of such Lender or of any Person that
wholly owns, directly or indirectly, such Lender, or (ii) if such Lender
is a fund that makes or invests in bank loans, any other fund that makes or
invests in bank loans and is advised or managed by (A) the same investment
advisor as any Lender or (B) any Affiliate of such investment advisor that
is a wholly-owned direct or indirect subsidiary of any Person that wholly owns,
directly or indirectly, such investment advisor, subject to the following
additional conditions (x), (y) and (z), with respect to assignments pursuant to
clause (i) above, and subject to the following additional conditions (y) and
(z) with respect to assignments pursuant to clause (ii) above:


 


(x)  any right of such Lender
assignor and such assignee to vote as a Lender, or any other direct claims or
rights against any other Persons, shall be uniformly exercised by both such
assignor and assignee or pursued in the manner that such Lender assignor would
have so exercised such vote, claim or right if it had not made such assignment
or transfer;


 


(y)  such assignee shall not be
entitled to payment from any Restricted Person under Sections 3.2 through 3.7
of amounts in excess of those payable to such Lender assignor under such
sections (determined without regard to such assignment or transfer); and


 


(z)  if such Lender assignor is
a Lender that assigns or transfers to such assignee any of such Lender
Commitment, assignee may become primarily liable for such Commitment, but such
assignment or transfer shall not relieve or release such Lender from such
Commitment.


 


(h) 
Upon receipt of an affidavit reasonably satisfactory to Borrower of an
officer of any Lender as to the loss, theft, destruction or mutilation of its
Note which is not of public record, and, in the case of any such loss, theft,
destruction or mutilation, upon cancellation of such Note, Borrower will
execute and deliver, in lieu thereof, a replacement Note in the same principal
amount thereof and otherwise of like tenor.


 


Section 10.6.  Confidentiality.  Each Lender Party agrees (on behalf of
itself and each of its Affiliates, and each of its and their directors,
officers, agents, attorneys, employees, and representatives) that it (and each
of them) will take all reasonable steps to keep confidential any non-public
information supplied to it by or at the direction of any Restricted Person so
identified when delivered, provided, however, that this restriction shall not apply
to (a) information which has at the time in question entered the public domain,
other than as a result of a breach of this


 


52

















 


Section 10.6, (b) information which is required to be disclosed by Law
(whether valid or invalid) of any Tribunal, (c) any disclosure to any Lender
Party’s Affiliates, auditors, attorneys or agents (provided each such Person
first agrees to hold such information in confidence on the terms provided in
this Section 10.6), (d) any disclosure to any other Lender Party or to any
purchaser or prospective purchaser of participations or other interests in any
Loan or Loan Document (provided each such Person first agrees to hold such
information in confidence on the terms provided in this section), or (e) any
disclosure in the course of enforcing its rights and remedies during the
existence of an Event of Default. 
Notwithstanding anything herein to the contrary, confidential
information shall not include, and each Lender Party and Restricted Person may
disclose and may permit to be disclosed to any and all Persons, without
limitation of any kind, the “tax treatment” and “tax structure” (in each case,
within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to such Lender
Party or Restricted Person relating to such tax treatment and tax structure.


 


Section 10.7.  Governing Law; Submission to Process.  EXCEPT TO
THE EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A LOAN
DOCUMENT, THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS
OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.  BORROWER HEREBY AGREES THAT ANY
LEGAL ACTION OR PROCEEDING AGAINST BORROWER WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR ANY OF THE LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK AS LENDER PARTIES MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF,
BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS.  EACH BORROWER AGREES THAT
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK SHALL APPLY TO THE LOAN DOCUMENTS AND WAIVES ANY RIGHT TO STAY OR TO
DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON THE BASIS OF
FORUM NON CONVENIENS.  IN FURTHERANCE OF
THE FOREGOING, BORROWER HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CORPORATION
SERVICE COMPANY, 80 STATE STREET, ALBANY, NEW YORK 12207, AS AGENT OF BORROWER
TO RECEIVE SERVICE OF ALL PROCESS BROUGHT AGAINST BORROWER WITH RESPECT TO ANY
SUCH PROCEEDING IN ANY SUCH COURT IN NEW YORK, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT.  COPIES OF ANY SUCH PROCESS SO
SERVED SHALL ALSO, IF PERMITTED BY LAW, BE SENT BY REGISTERED MAIL TO BORROWER
AT ITS ADDRESS SET FORTH BELOW, BUT THE FAILURE OF BORROWER TO RECEIVE SUCH
COPIES SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS AS
AFORESAID.  BORROWER SHALL FURNISH TO
LENDER PARTIES A CONSENT OF CORPORATION SERVICE COMPANY AGREEING TO ACT
HEREUNDER PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF
LENDER PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF LENDER PARTIES TO BRING PROCEEDINGS AGAINST BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION.  IF
FOR ANY REASON CORPORATION SERVICE COMPANY SHALL RESIGN OR OTHERWISE CEASE TO
ACT AS BORROWER’S AGENT, BORROWER HEREBY IRREVOCABLY AGREES TO (A) IMMEDIATELY
DESIGNATE AND APPOINT A NEW AGENT ACCEPTABLE TO ADMINISTRATIVE AGENT TO SERVE


 


53

















 


IN SUCH CAPACITY AND, IN SUCH EVENT, SUCH NEW
AGENT SHALL BE DEEMED TO BE SUBSTITUTED FOR CORPORATION SERVICE COMPANY FOR ALL
PURPOSES HEREOF AND (B) PROMPTLY DELIVER TO ADMINISTRATIVE AGENT THE WRITTEN
CONSENT (IN FORM AND SUBSTANCE SATISFACTORY TO ADMINISTRATIVE AGENT) OF SUCH
NEW AGENT AGREEING TO SERVE IN SUCH CAPACITY.


 


Section 10.8.  Limitation on Interest.  Lender Parties, Restricted Persons and any
other parties to the Loan Documents intend to contract in strict compliance
with applicable usury Law from time to time in effect.  In furtherance thereof such Persons
stipulate and agree that none of the terms and provisions contained in the Loan
Documents shall ever be construed to create a contract to pay, for the use,
forbearance or detention of money, interest in excess of the maximum amount of
interest permitted to be contracted for, charged, or received by applicable Law
from time to time in effect.  Neither
any Restricted Person nor any present or future guarantors, endorsers, or other
Persons hereafter becoming liable for payment of any Obligation shall ever be
liable for unearned interest thereon or shall ever be required to pay interest
thereon in excess of the maximum amount that may be lawfully contracted for,
charged, or received under applicable Law from time to time in effect, and the
provisions of this section shall control over all other provisions of the Loan
Documents which may be in conflict or apparent conflict herewith.  Lender Parties expressly disavow any intention
to contract for, charge, or receive excessive unearned interest or finance
charges in the event the maturity of any Obligation is accelerated.  If (a) the maturity of any Obligation
is accelerated for any reason, (b) any Obligation is prepaid and as a
result any amounts held to constitute interest are determined to be in excess
of the legal maximum, or (c) any Lender or any other holder of any or all
of the Obligations shall otherwise collect moneys which are determined to
constitute interest which would otherwise increase the interest on any or all
of the Obligations to an amount in excess of that permitted to be contracted
for, charged or received by applicable Law then in effect, then all sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of the
related Obligations or, at such Lender’s or holder’s option, promptly returned
to Borrower or other payor thereof upon such determination.  In determining whether or not the interest
paid or payable, under any specific circumstance, exceeds the maximum amount
permitted under applicable Law, Lender Parties and Restricted Persons (and any
other payors thereof) shall to the greatest extent permitted under applicable
Law, (i) characterize any non-principal payment as an expense, fee or
premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate, and spread the
total amount of interest throughout the entire contemplated term of the instruments
evidencing the Obligations in accordance with the amounts outstanding from time
to time thereunder and the maximum legal rate of interest from time to time in
effect under applicable Law in order to lawfully charge the maximum amount of
interest permitted under applicable Law. 
In the event applicable Law provides for an interest ceiling under
Chapter 303 of the Texas Finance Code (the “Texas Finance Code”) as
amended, to the extent that the Texas Finance Code is mandatorily applicable to
any Lender, for that day, the ceiling shall be the “weekly ceiling” as defined
in the Texas Finance Code, provided that if any applicable Law permits greater
interest, the Law permitting the greatest interest shall apply.  In no event shall Chapter 346 of the Texas
Finance Code apply to this Agreement or any other Loan Document, or any
transactions or loan arrangement provided or contemplated hereby or thereby.


 


Section 10.9.  Right of Offset.  At any time and from time to time during the
continuance of any Event of Default, each Lender is hereby authorized to offset
against the Obligations then due and payable (without notice to any Restricted
Person), (a) any and all moneys, securities or


 


54

















 


other property (and the proceeds therefrom) of such Restricted Person
now or hereafter held or received by or in transit to any Lender from or for
the account of such Restricted Person, whether for safekeeping, custody,
pledge, transmission, collection or otherwise, (b) any and all deposits
(general or special, time or demand, provisional or final) of such Restricted
Person with any Lender, and (c) any other credits and claims of such Restricted
Person at any time existing against any Lender, including claims under
certificates of deposit.


 


Section 10.10.  Termination; Limited Survival.  In its sole and absolute discretion Borrower
may at any time that no Obligations are owing or outstanding elect in a written
notice delivered to Administrative Agent to terminate this Agreement.  Upon receipt by Administrative Agent of such
a notice, if no Obligations are then owing or outstanding this Agreement and
all other Loan Documents shall thereupon be terminated and the parties thereto
released from all prospective obligations thereunder.  Notwithstanding the foregoing or anything
herein to the contrary, any waivers or admissions made by any Restricted Person
in any Loan Document, any Obligations under Sections 3.2 through 3.6, and any
obligations which any Person may have to indemnify or compensate any Lender
Party shall survive any termination of this Agreement or any other Loan
Document.  At the request and expense of
Borrower, Administrative Agent shall prepare and execute all necessary
instruments to reflect and effect such termination of the Loan Documents.  Administrative Agent is hereby authorized to
execute all such instruments on behalf of all Lenders, without the joinder of
or further action by any Lender.


 


Section 10.11.  Severability.  If any term or provision of any Loan Document
shall be determined to be illegal or unenforceable all other terms and
provisions of the Loan Documents shall nevertheless remain effective and shall
be enforced to the fullest extent permitted by applicable Law.


 


Section 10.12.  Counterparts.  This Agreement may be separately executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Agreement.


 


Section 10.13.  Waiver of Jury Trial, Punitive Damages,
etc.  Restricted Persons and Lender Parties mutually
hereby knowingly, voluntarily, and intentionally waive the right to a trial by
jury in respect of any claim based hereon, arising out of, under or in
connection with, this Agreement or any other Loan Documents contemplated to be
executed in connection herewith or any course of conduct, course of dealings,
statements (whether verbal or written) or actions of any party.  This waiver constitutes a material inducement
for Lenders to enter into this Agreement and the other Loan Documents and make
the Loans.  Borrower and each Lender
Party hereby further (a) irrevocably waives, to the maximum extent not
prohibited by Law, any right it may have to claim or recover in any such
litigation any “Special Damages,” as defined below, (b) certifies that no party
hereto nor any representative or agent or counsel for any party hereto has
represented, expressly or otherwise, or implied that such party would not, in
the event of litigation, seek to enforce the foregoing waivers, and (c)
acknowledges that it has been induced to enter into this Agreement, the other
Loan Documents and the transactions contemplated hereby and thereby by, among
other things, the mutual waivers and certifications contained in this section.  As used in this section, “Special Damages”
includes all special, consequential, exemplary, or punitive damages (regardless
of how named), but


 


55

















 


does not include any
payments or funds which any party hereto has expressly promised to pay or
deliver to any other party hereto.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]


 


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IN WITNESS WHEREOF, this Agreement is
executed as of the date first written above.


 


	
  Borrower:

  	
  PLAINS ALL
  AMERICAN PIPELINE, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  PLAINS AAP,
  L.P.,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PLAINS ALL
  AMERICAN GP LLC,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Al
  Swanson

  
	
   

  	
   

  	
  Al Swanson,
  Treasurer

  
	
   

  	
   

  
	
  Address for
  Borrower and Guarantors:

  	
  333 Clay
  Street, Suite 1600

  
	
   

  	
  Houston,
  Texas 77002

  
	
   

  	
  Attention:
  Al Swanson

  
	
   

  	
  Telephone:
  (713) 646-4455

  
	
   

  	
  Fax: (713)
  646-4564

  
	
   

  	
  Website:
  www.paalp.com

  



 


57

















 


	
   

  	
  FLEET
  NATIONAL BANK,

  
	
   

  	
  Administrative
  Agent and a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Terrence Ronan

  
	
   

  	
   

  	
  Terrence
  Ronan, Managing Director

  
	
   

  	
   

  
	
   

  	
  FLEET
  SECURITIES, INC.,

  
	
   

  	
  Lead
  Arranger and Book Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Michael P. Hannon

  
	
   

  	
   

  	
  Michael P.
  Hannon, Managing Director

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  Co-Syndication
  Agent and a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  BANK ONE, NA

  
	
   

  	
  Co-Syndication
  Agent and a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A.,

  
	
   

  	
  Co-Documentation
  Agent and a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  FORTIS
  CAPITAL CORP.

  
	
   

  	
  Co-Documentation
  Agent and a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
								



 


58